BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 04/08/2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.(MD)No.689 of 2009 1. S.Ramamorthy 2. R.Chitra ... Appellants/Petitioners Vs 1. M/s. Sriparasakthi Fire Works through its proprietor, 2. M/s. The New India Assurance Company Limited through its Branch Manager, Sivakasi, Virudhunagar District. ... Respondents/Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and award dated 13.03.2008, passed in M.C.O.P.No.5 of 2006 by the Motor Accident Claims Tribunal, Principal District Judge, Virudhunagar. !For Appellants ... Mr.N.V.Suresh Kumar ^For Respondents ... D.Sivaraman for R.2 No appearance for R.1. * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been preferred by the claimants
against the award of Rs.60,000/-(Rupees sixty thousand only) as against their
claim of Rs.2,50,000/-(Rupees two lakhs and fifty thousand only).
2. The facts of the case are as follows:
The case of the appellants, (herein after referred to as claimants) is
that on 28.09.2005, the mini door auto belonging to the first respondent hit the
child of the claimants while reversing the said auto. The child which was 11
months old, died on the spot. Hence, the claimants preferred the claim petition
claiming compensation to the tune of Rs.2,50,000/-(Rupees two lakhs and fifty
thousand only).
3. The second respondent Insurance company contested the claim petition
contending that the second appellant, the mother of the child was the sole cause
for the alleged accident. Moreover, the second appellant also took the stand
that the accident took, which is not public place and that the petition under
Motor Vehicles Act is not maintainable and the Tribunal had no jurisdiction to
try the matter.
4. On enquiry, the Tribunal concluded that the accident occurred because
of the negligent act of the driver of the mini door auto, owned by the first
respondent.
5. As far as quantum is concerned, relying upon the judgment reported in
2007 ACJ 2816, a sum of Rs.60,000/-(Rupees sixty thousand only) was awarded.
6. Aggrieved by the award only, the present appeal has been preferred by
the parents.
7. Mr.N.V.Sureshkumar, learned Counsel for the appellants submitted that
the appellants lost their only child and the Tribunal came to the conclusion
that because of the negligence of the driver of the first respondent’s vehicle,
but ought to have granted the amount sought for in the claim petition. The
learned Counsel further submitted that award of meagre amount of Rs.60,000/-
(Rupees sixty thousand only) is inadequate considering the preciousness of the
baby which was lost by the parents at the age of 11 months. Accordingly, he
sought for enhancement. He relied upon the following decisions of the
Honourable Supreme Court:
(1) R.K.Malik and Another Vs. Kiran Pal and another reported in 2009(1) TN
MAC 593(SC).
(2) New India Assurance Company Limited Vs. Satender and Others, reported
in 2007(1) T.A.C. 11 (S.C)
(3) D.S.Muralikrishnan and another Vs. Metropolitan Transport
Corporation(Chennai Division-I)Limited, reported in 2004(2) TN MAC 150 (DB)
(4) Sri Bhola Das Vs. National Insurance Company Limited and another
reported in 2005(2) T.A.C. 196(Calcutta), and
(5) Divisional Controller, B.T.S. Division, Vs. Vidya Shinde and another
reported in 2004(2) T.A.C. 574(Karnataka) and pleaded for enhancement.
8. On the other hand, the learned Counsel for the second
respondent/Insurance Company submitted that it is very difficult to ascertain
the future prospects of the child and especially in this case, the child was
aged about 11 months and hence, the Tribunal rightly awarded a sum of
Rs.60,000/-(Rupees sixty thousand only) relying upon the judgment of the
Honourable Supreme Court reported in 2007 ACJ 2816. He also relied upon the
judgment of the Honourable Supreme Court passed in Kaushalya Devi Vs. Sri Karan
Arora and Others reported in AIR 2007 SC 1912 wherein a sum of Rs.1,00,000/-
(Rupees one lakh only) only was granted for the death of 14 years old minor
child and the same was confirmed by the Honourable Supreme Court. In view of
the judgment, there cannot be any exorbitant amount to be awarded for the death
of the 11 months old baby.
9. As far as the negligence is concerned, it has attained the finality as
there is no appeal by the Insurance Company hence, there is no necessity to go
into that aspect.
10. The Tribunal found that though the place of occurrence situated within
the campus of the factory, based on Exs.R.2 and R.3, the Tribunal found that
anybody can have access to the place and found that the place of occurrence is
a public place. The Tribunal based on the judgment of 2007 ACJ 2816, awarded a
sum of Rs.60,000/-(Rupees sixty thousand only).
11. The judgment of the Honourable Supreme Court in R.K.Malik and Another
Vs. Kiran Pal and another reported in 2009(1) TN MAC 593(SC), throws more light
regarding death of the child and what should be the criteria to be followed. In
that case, school children proceeding to school in a bus, fell in river causing
death of 29 children. The Tribunal took the notional income of Rs.15,000/-
(Rupees fifteen thousand only) per annum as per Second Schedule and deducted
Rs.5,000/-(Rupees five thousand only) towards personal expenses and arrived at
the loss of dependency at Rs.10,000/-(Rupees ten thousand only) and adopted
multiplier ’15’ for the children at the age group of 10 to 15 and awarded a sum
of Rs.1,50,000/-(Rupees one lakh and fifty thousand only) and Rs.1,60,000/-
(Rupees one lakh and sixty thousand only) for the age group of 15 to 18 years.
On appeal by the parents, the High Court awarded Rs.75,000/-(Rupees seventy five
thousand only)additionally in each case towards non-pecuniary damages. Again
on, further appeal, the Honourable Supreme Court, awarded a sum of Rs.75,000/-
(Rupees seventy five thousand only) in each case towards future prospects. In
that case, the Honourable Supreme Court, analysed the earlier cases including
Lata Wadhwa Vs. State of Bihar reported in 2001(8) SCC 187, M.S.Grewal Vs.
Deepchand Soot reported in 2001(8) SCC 151. In the aforesaid case, the
Honourable Supreme Court took into account the pecuniary loss, non-pecuniary
loss and future prospects of the child. In total, for a child which was aged
about 15 to 18 years a sum of Rs.3,00,000/-(Rupees three lakhs only) was
granted.
12. The other judgement reported in 2007(1) T.A.C.11, the Tribunal took
the notional income for the death of the 9 year old minor boy, at Rs.30,000/-
(Rupees thirty thousand only) per annum and deducted one-third towards personal
expenses and fixed the financial dependency of parents at Rs.20,000/-(Rupees
twenty thousand only) and applied multiplier ’17” and calculated the total loss
of income at Rs.3,40,000/-(Rupees three lakhs and forty thousand only). The
Honourable Supreme Court, on appeal, reduced the award amount to Rs.1,80,000/-
(Rupees one lakhs and eighty thousand only)and observed that now, the income of
the child being capable of assessment on estimated basis nor financial loss
suffered by the parents was capable of mathematical completion. In another case
a Division Bench of this Court, the Honourable Supreme Court in 2007(2) TN MAC
41 for the death of 14 years old minor, a sum of Rs.1,00,000/-(Rupees one lakh
only) was awarded and the same was confirmed by the Honourable Supreme Court,
observing that in case of young children, in view of their income at the time of
their death cannot be calculated.
13. In the 2004(2) TN MAC 150 the Division Bench of this Court, for the
death of minor child, 11 months age minor child, 75% was awarded by the
Tribunal. After applying the rule of multiplier and notional income, based on
Apex Court judgment passed in Lata Wadhwa Vs. State of Bihar reported in
2001(8) SCC 187, the Division Bench fixed the monthly income at Rs.2,000/-
(Rupees two thousand only) per month. Since, the child was a girl, multiplier
“6” was applied. Taking her age 18 years, as her age of earning and her age 24
as the age of her marriage and applying multiplier “6”,
Rs.2000x12x6=Rs.1,44,000/-, the parents are awarded a sum of Rs.1,44,000/-
(Rupees one lakh and forty four thousand only) and along with other amount, a
sum of Rs.16,000/-(Rupees sixteen thousand only) was awarded.
14. In Lata Wadhwa case, the Honourable Supreme Court, applied the
multiplier and notional income was taken into account. Similarly in 2004(2) TN
MAC 150, also, the multiplier was adopted and notional income was also taken
into account. In 2007 ACJ 2816 wherein only, a very meagre amount was given.
15. Taking into consideration the aforesaid judgments, the Honourable
Supreme Court adopted multiplier from the Second Schedule of the Motor Vehicles
Act and the notional income was also taken and accordingly the amount was
awarded.
16. This case is not an extraordinary case to deviate from the yardsticks
given in the above judgments. As per the Second Schedule, up to the age of 15,
the proper multiplier should be 15. Taking into consideration the above
judgments especially R.K.Malik and Another Vs. Kiran Pal and another reported in
2009(1) TN MAC 593(SC) and as per the Second Schedule, notional income of
Rs.15,000/-(Rupees fifteen thousand only)per annum is fixed. Since the age upto
15 years, the multiplier according to the second Schedule is ’15’, the same is
applied and a sum of Rs.2,25,000/-(Rupees two lakhs and twenty five thousand
only) will be the loss of income towards the death of the minor. Regarding
other amounts are concerned, a sum of Rs.5,000/-(Rupees five thousand only)
towards funeral expenses and a sum of Rs.20,000/-(Rupees twenty thousand only)
towards loss of love and affection and totally a sum of Rs.2,50,000/-(Rupees two
lakhs and fifty thousand only) was awarded.
17. The pain and suffering the mother undergoes while carrying child in
her womb and during delivery of a child are un-comparable. Delivery is a
second birth to the mother. By the loss of the child, the entire exercise
became futile. Immortal “THIRUVALLUVAR” in his “THIRUKKURAL” gave importance to
one’s children and wrote 10 couplets under:
“kf;fl;BgW “BLESSED WITH CHILDREN”
” Nd;w bghGjpd; bghpJtf;Fk; jd; kfidr; rhd;Bwhd;
vdf; Bfl;l jha;”
means “A mother rejoicer at the birth of son-
But even more when he is praised as wise man”
When such is the position, the pain and suffering and loss in all aspects
because of the death of the child cannot be estimated. Any amount of
compensation cannot console the parents. In any event, eventualities of the
life and also future prospects has been considered by this Court for granting
the compensation.
18. No amount can compensate the loss of the first child of the parents.
Merely because the child was lost, it does not mean that this Court cannot
consider future prospects, financial dependency of the parents. Loss of child
would mean loss of love, affection, care and comfort. The chemistry involved in
the love and care of the parents and delightfulness, warmth of the child cannot
be got from any other source. Can “Kamadhenu” or “Karpagavriksha” be equal to a
child? It cannot be.
19. Accordingly, the award of the Tribunal namely Rs.60,000/-(Rupees sixty
thousand only) is enhanced to Rs.2,50,000/-(Rupees two lakhs and fifty thousand
only). The aforesaid amount will attract the interest at the rate of 7.5%.
Accordingly, the appeal is allowed. No costs.
20. Mr. R.Manisankar, on behalf of Mr.D.Sivaraman, learned Counsel for the
respondent, seeks four weeks’ time to deposit the award amount before the
Tribunal. Accordingly, four weeks’ time is granted and the Tribunal is directed
to pay the entire award amount to the appellants within a period of one week
from thereof.
21. The learned Counsel for the appellants submits that for the claim of
Rs.2,00,000/-(Rupees two lakhs only) the Court fee was paid. For the excess
amount, the appellants have to pay the proper Court fee and hence, the same is
ordered.
ssl
To
The Motor Accident Claims Tribunal,
Principal District Judge, Virudhunagar.