IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07/06/2006
Coram
The Hon'ble Mr. Justice V. DHANAPALAN
C.M.A.(NPD) No.62 of 1998
1. G. Arumugam
2. Anjalai .. Appellants
-Vs-
1. R. Krishnamurthy
2. The New India Assurance Company Limited
38 Anna Salai
Madras - 600 002 .. Respondents
Civil Miscellaneous Appeal filed against the judgment and decree dated
28.04.1997 made in M.C.O.P. No.639 of 1995 on the file of the Motor Accident
Claims Tribunal (V Judge, Court of Small Causes), Chennai.
!For appellants : Mr. Varada Kamaraj
for. Mr. B.S. Padmanabhan
^For R2 : Mr. M. Krishnamoorthy
:JUDGMENT
Challenging the award of the Motor Accident Claims Tribunal, V Court
of Small Causes, Chennai (hereinafter referred to as “the Tribunal”) made in
M.C.O.P. No.639 of 1995 dated 28.04.1997 for a sum of Rs.50,0 00/- in respect
of death of their only son Poovannan aged eight years, the parents of the
deceased, have preferred this Civil Miscellaneous Appeal for enhancement of
compensation to Rs.1,50,000/-.
2. In support of their claim, the father of the deceased was
examined as P.W.1, one Gnanaprakasam, an eye-witness to the accident, was
examined as P.W.2 and one Amaldass, Sub-Inspector of Police, Traffic
Investigation Department was examined as P.W.3 besides marking Legal Heir
Certificate as Ex.P.1, First Information Report as Ex.P.2, Copy of sketch as
Ex.P.3, Post-mortem Certificate as Ex.P.4 and the school Transfer Certificate
as Ex.P.5. On the side of the respondents, neither oral nor documentary
evidence was let in.
3. The Tribunal, after analyzing the oral and documentary
evidence and after holding that the accident was due to the rash and negligent
driving of the driver of the car in question, ordered that, a sum of
Rs.50,000/- with interest at the rate of 12% per annum from the date of
petition till the date of deposit, may be paid to the claimants by the second
respondent Insurance Company on behalf of the first respondent.
4. According to the appellants who were the claimants before the
Tribunal, on 12.02.1995 at about 4:30 p.m., when the deceased Poovannan,
studying in III standard, was standing on the eastern side of the 100 ft.
road opposite to Ottagapalayam, Sri Mandaveli Amman Kovil, a car bearing
Registration No. MMU 7425 driven rashly and negligently, coming from North to
South, dashed against Poovannan due to which, he sustained injuries and was
taken to Government Royapettah Hospital where he died. It is the case of the
appellants that the first respondent, as the owner of the vehicle and the
second respondent, as the insurer of the vehicle are vicariously and
statutorily liable to pay the compensation.
5. The first respondent herein was absent and set ex-parte before
the Tribunal and the second respondent Insurance company has filed its counter
denying the injuries sustained by the deceased and the place, date and time of
the accident and contending that in any event, the compensation claimed is
excessive.
6. Heard Mr. Varada Kamaraj for Mr. B.S. Padmanabhan, learned
counsel for the appellants and Mr. M. Krishnamurthy, learned counsel for the
second respondent Insurance Company.
7. The learned counsel for the appellants has contended that:
a. the Tribunal, having found that the negligence is on the part of the
driver of the car, ought to have considered the quantum of compensation
claimed by the appellants.
b. the deceased would have got an employment in future and would have
supported the appellants till their lifetime
c. that as per Schedule II of Section 163-A of the Act, the appellants
are entitled to compensation which works out to Rs.2 lakhs whereas the
Tribunal went wrong in awarding Rs.50,000/- only.
7. In support of his contention, the learned counsel for the appellants
has relied on a decision of the Supreme Court reported in 2001 ACJ 1735 (Lata
Wadhwa & Others Vs. State of Bihar & Others) in which case for the age group
of children between 5 and 10 years who died on account of fire in Pandal,
apart from a compensation of Rs.1,50,000/-, a sum of Rs.50,000/- was awarded
towards conventional damage and therefore, it is the argument of the counsel
for the appellants that in this case, the age of the deceased being 8 years,
the quantum of compensation has to be awarded in the light of the principle
laid down in the above ruling.
8. In addition to the above, he has also relied on a decision of
the Supreme Court reported in 2005 ACJ 99 (Manju Devi & Another Vs. Musafir
Paswan & Another) in which case, the deceased was aged 13 years and the award
of the Tribunal was increased from Rs.90,000/- to Rs.2,25 ,000/-.
9. Per contra, Mr. M. Krishnamurthy, learned counsel for the
Insurance Company has contended that the deceased was a school student and was
not an earning member to support to the family. It is his further contention
that the amount of compensation arrived at by the Tribunal is reasonable and
based on the ruling of this Court reported in 2004 (1) TN MAC 172 (Kokila and
Another Vs. A.C. Rayan & Another) and the ruling in the above case is
squarely applicabl e to the facts of the present case and therefore, it may be
taken into consideration.
10. He has further relied on a decision of the Supreme Court
reported in 2004 ACJ 53 in the case of Municipal Corporation of Greater Mumbai
Vs. Laxman Iyer and Another in which case the deceased aged 18 years,
belonged to a respectable and educated family and the Tribunal adopted 15
multiplier but the Apex Court adopted multiplier of 10 while assessing the
compensation.
11. Further reliance has been placed by the learned counsel for
the second respondent Insurance Company on a judgment of this Court reported
in 1997 MLJ II 217 (Managing Director, Dheeran Chinnamalai Transport
Corporation Ltd. Vs. Thangappan and Another) in which case, this Court
confirmed the compensation of Rs.75,000/- awarded by the Tribunal for a 3 year
old deceased and hence, he argued that the appeal may be dismissed.
12. In view of the fact that the present appeal is for higher
compensation and in the absence of any appeal by the owner and the insurer, it
is unnecessary for me to go into the finding of the Tribunal regarding
negligence and liability and thus, the only point for consideration before me
is whether the appellants deserve enhancement of compensation and if so, what
is the extent of enhancement.
13. It is seen from Ex.P.5, the school Transfer Certificate which
was marked to prove that the date of birth of the deceased was 11.03.198 7 and
he was about eight years old and the fact that he was studying in III standard
is also proved from the above exhibit. The appellants who are the parents of
the deceased would have been subject to grief as they have lost their only
son. It is not in dispute that the claimants, being the legal heirs of the
deceased, are entitled to get the compensation. Though a claim of
Rs.1,95,000/- was made for pecuniary loss to the estate of the deceased,
Rs.3,000/- for loss of expectation of life and Rs.2,000/- for funeral expenses
totaling to Rs.2,00 ,000/-, the Tribunal has awarded only Rs.50,000/-.
Further, the Tribunal has not awarded any amount towards conventional damages.
It is argued by the learned counsel for the respondent Insurance Company that
for a school going boy, there cannot be any proof of income. In my view,
notional income per year for a non-earning person could have been taken as
Rs.15,000/- and this is an accident which took place on 12.02.1995. The
Schedule II of Section 163 of the Motor Vehciles Act could have been taken
into consideration for applying the proper multiplier which is not followed in
this case. The claim made by the appellants is quite reasonable as the loss
of their only son should have been given paramount consideration by the
Tribunal which has not been done.
14. In view of the above situation, let me now proceed to consider
the decisions cited by the learned counsel for the appellants herein:
15. Firstly, he has relied on a decision of the decision reported
in 2001 ACJ 1735 (Lata Wadhwa and Others Vs. State of Bihar and Others)
wherein it was held in paragraph 11 as under:
“11. So far as the award of compensation in case of children are concerned,
Mr. Chandrachud has divided them into two groups, first group between the age
group of 5 and 10 years and the second group between the age group of 10 and
15 years. In the case of children between the age group of 5 and 10 years, a
uniform sum of Rs.50,000/- has been held to be payable by way of compensation,
to which the conventional figure of Rs.25,000/- has been added and as such to
the heirs of the 14 children, a consolidated sum of Rs.75,000/ – each has been
awarded. So far as the children in the age group of 10 to 15 years, there are
10 such children, who died on the fateful day and having found their
contribution to the family at Rs.12,000/- per annum, multiplier of 11 has been
applied, particularly, depending upon the age of the father and then the
conventional compensation of Rs.25,000/- has been added to each case and
consequently, the heirs of each of the deceased above 10 years of age, have
been granted compensation to the tune of Rs.1,57,000/- each. In case of death
of an infant, there may have been no actual pecuniary benefit derived by its
parents during the child’s lifetime. But this will not necessarily bar the
parents’ claim and prospective loss will found a valid claim provided that the
parents establish that they had a reasonable expectation of pecuniary benefit
if the child had lived. This principle was laid down by the House of Lords in
the famous case of Taff Vale Railway Company Vs. Jenkins (1913 AC 1 and Lord
Atknison said thus:
“?all that is necessary is that a reasonable expectation of pecuniary benefit
should be entertained by the person who sues. It is quite true that the
existence of this expectation is an inference of factthere must be a basis of
fact from which the inference can reasonably be drawn; but I wish to express
my emphatic dissent from the proposition that it is necessary that two of the
facts without which the inference cannot be drawn are, first, that the
deceased earned money in the past and second that he or she contributed to the
support of the plaintiff. These are, no doubt, pregnant pieces of evidence,
but they are only pieces of evidence; and the necessary inference can I think
be drawn from circumstances other than and different from them.”
At the same time, it must be held that a mere speculative possibility
of benefit is not sufficient. Question whether there exists a reasonable
expectation of pecuniary advantage is always a mixed question of fact and law.
There are several decided cases on this point, providing the guidelines for
determination of compensation in such cases but we do not think it necessary
for us to advert, as the claimants had not adduced any materials on the
reasonable expectation of pecuniary benefits, which the parents expected. In
case of a bright and healthy boy, his performances in the school, it would be
easier for the authority to arrive at the compensation amount, which may be
different from another sickly, unhealthy, rickety child and bad student, but
as has been stated earlier, not an iota of material was produced before Mr.
Chandrachud to enable him to arrive at just compensation in such cases and,
therefore, he has determined the same on an approximation. Mr. Nariman,
appearing for the TISCO on his own submitted that the compensation determined
for the children of all age groups could be doubled, as in his views also, the
determination made is grossly inadequate. Loss of a child to the parents is
irrecoupable and no amount of money could compensate the parents. Having
regard to the environment from which these children were brought, their
parents being reasonably well placed officials of the Tata Iron and Steel
Company and on considering the submission of Mr. Nariman, we would direct
that the compensation amount for the children between the age group of 5 and
10 years should be three times. In other words, it should be Rs.1,50,000/- to
which the conventional figure of Rs.50,000/- should be added and thus the
total amount in each case would be Rs.2,00,000/-. So far as the children
between the age group of 10 and 15 years, they are all students of class VI to
Class X and are children of employees of TISCO. The TISCO itself has a
tradition that every employee can get one of his child employed in the
Company. Having regard to these facts, in their case, the contribution of
Rs.12,000/- per annum appears to us to be on the lower side and in our
considered opinion, the annual contribution should be Rs.24,000/- and instead
of multiplier of 11, the appropriate multiplier would be 15. Therefore, the
compensation, so calculated on the aforesaid basis, should be worked out to
Rs.3,60,000/- to which an additional sum of Rs.50,000/- has to be added, thus
making the total compensation payable at Rs.4,10,000/- for each of the
claimants of the aforesaid deceased children.”
16. The learned counsel for the appellants has also placed
reliance on a recent decision of the Supreme Court reported in 2005 ACJ 99 (
Manju Devi and Another Vs. Musafir Paswan and Another) wherein paragraphs 2
and 3 read as under:
“2. In the case of U.P. State Road Transport Corporation Vs. Trilok
Chandra, 1996 ACJ 831 (SC), it has been held by this Court that there should
be no departure from the multiplier method on the ground that payment being
made is just compensation. It has been held that the multiplier method must
be accepted method for determining and ensuring payment of just compensation
as it is the method which brings uniformity and certainty to awards made all
over the country. In view of this authority, it was have to be held that the
award of compensation had to be made by the multiplier method.
3. As set out in the Second Schedule of the Motor Vehicles Act,
1988 , for a boy of 13 years of age, a multiplier of 15 would have to be
applied. As per the Second Schedule, he being a non-earning person, a sum of
Rs.15,000/- must be taken as the income. Thus, the compensation comes to
Rs.2,25,000/-.”
17. In the instant case, the deceased was aged eight years at the
time of death and was studying III standard. It is seen from the evidence
that the appellants have lost their only son. The Court has to depend upon
very many uncertain factors and has to take overall picture and form the
estimate. It may be sometime based upon speculation. A just and fair
calculation of compensation would be what the beneficiaries would have
received from the deceased as support for their maintenance had the deceased
lived and earned. The paramount consideration of the matter is only to
protect the interest of the claimants so that the amount awarded to them by
way of compensation serves the purpose and object of compensation to them for
the loss occasioned by the tragedy of the accident. In the present case, the
possibility of the deceased becoming successful in the life cannot be ruled
out. There can be no exact, uniform rule for measuring the value of human
life and the measure of damage cannot be arrived at by precise mathematical
calculations.
18. In this context, it is useful to refer to a judgment of the
First Bench of this Court reported in 2005 (1) MLJ 677 (The President,
Malikdhinar English Medium School and Another Vs. A. Babudeen and Others) in
which case the school van, while bringing a minor girl aged 3+ years back home
from the school, the girl alighted from the van and the driver of the van
suddenly started the bus and the van ran over the child for which the Tribunal
a compensation of Rs.1,12,000/-. While dealing with this case, the First
Bench of this Court observed as under:
“5. The learned counsel for the appellants then contended that the
compensation of Rs.1,12,500/- with interest awarded by the Tribunal towards
the damages was exorbitant and the multiplier method adopted by the Tribunal
was not proper and correct because in the case of such a young child, it would
be wholly speculative to infer what would be the loss of pecuniary benefits
reasonably to be expected after the child attains majority. He has relied on
the Supreme Court decision in C.K. Subramania Iyer Vs. T.K. Unhikuttan
Nair, (1969) 3 SCC 64 and in M.S. Grewal Vs. Deepchand Sod, AIR 2001 SC
3660. He also relied on the decision of the Division Bench of this Court
rendered in United India Insurance Company Limited Vs. Bankarappa Nicken and
Others, 1994 ACJ 91.
6. We agree with the learned counsel for the appellant that it is
purely speculative to consider the future earning capacity of a child of 3 +
years old. We can have no idea at all what the child would have earned when
she would have grown up and hence, we cannot fix the compensation on this
basis.
7. On the other hand, in our opinion, it is the mental agony of
the parents of the child which is the real determining factor for awarding
damages in such cases. It must be remembered that in such cases there is
bound to be a permanent mental scar in mind, particularly of the mother of the
child, which is likely to last throughout her life. The mother will be
thinking of that child the rest of her life and would be imagining what the
child would have done on growing up, she would imagine about the marriage of
the child, the future of the child, and so on. That is the natural and normal
mentality of every mother. Hence, the agony of such a mother, whose child has
been killed, for the rest of her life is indescribable and unimaginable. The
compensation, therefore, must be awarded taking this factor into account.
Wounds of the mind can be as damaging and bitter (if not more) than the wounds
of the body and the law cannot ignore this.
8. Mental agony is certainly a determining factor which has to be
taken into account when awarding damages. ”
19. In Lata Wadhwa Vs. State of Bihar, AIR 2001 SC 3218, where a
number of persons, including children, died in a fire accident in a function
organized by the Tata Iron and Steel Company (TISCO) at Jamshedpur, parents of
children in the age group of 5 and 10 years were allowed Rs.1,50,000/- and
parents of children in the age group of 10 and 15 years Rs.2,60,000/- as
compensation. In addition, in each case, Rs.50,000/- were awarded as
conventional amount presumable towards benefit of the estimate. ”
19. Resisting the same, the counsel for the respondent Insurance Company
has relied on a decision of 2004 ACJ 1953 (Municipal Corporation of Greater
Bombay Vs. Laxman Iyer and Another) which is a case of a fatal accident
involving 18 year old student belonging to a respectable and educated family
and the father’s age was 47 and the mother was aged 43. The Tribunal assessed
the income as Rs.3,000/- per month, adopted multiplier of 15 and assessed
compensation of Rs.5,60,000/- including loss of expectation of life, made
deduction of 25% for lumpsum payment and awarded the compensation. The Apex
Court, in that case, adopted multiplier of 10 and assessed the compensation
and after deduction of 25% for contributory negligence of the deceased, the
award has been reduced. Whereas in the present case, the facts are different.
Therefore, there is no merit in the argument advanced to apply the same
proposition to this case.
20. The learned counsel for the respondent Insurance Company has
placed reliance on a decision of a Division Bench of this Court reported in
2004 (1) TNMAC 172 (Kokila and Another Vs. A.C. Rayan and Another) wherein a
Division Bench has considered the case of a minor girl aged 10 years studying
in III standard and enhanced the compensation of Rs.25,000/- to Rs.75,000/-
for an accident that took place on 17.07,1992. He has further argued that a
positive consideration was decided by a learned Single Judge of this Court in
a decision reported in 1 997 2 MLJ 217 (The Managing Director, Dheeran
Chinnamalai Transport Corporation Vs. Thangaraju and Another) and an award of
Rs.75,000/- was granted to the deceased aged 13 years at the time of accident
which took place on 09.12.1993.
21. It has to be noted here that the above two decisions are prior
to the amendment of the M.V. Act in 1994 during which period, there was no
guideline in respect of calculating pecuniary damages based on Schedule II of
163 of the Motor Vehciles Act, more particularly, about the application of
multiplier in a case of this kind. Therefore, I am of the view that there is
no point in applying the decision in those two cases to the case on hand.
22. In such a view of the matter, taking into account the rulings
of the Supreme Court in Lata Wadhwa case and Manju Devi case cited supra and
also the decision of the First Bench of this Court, I do not propose to go
into any mathematical calculation to arrive at the compensation. Even
otherwise, by the method of taking the notional income of a non-earning person
as Rs.15,000/- per annum and applying multiplier of 10, the quantum of
compensation would be Rs.1,50,000/-. Thus, it would be proper for this Court
to enhance the compensation from Rs.50,000/- to Rs.1,50,000/- as the
appellants herein have lost their only son.
23. For the amount awarded by the Tribunal, the rate of interest
shall be the same i.e. 12% per annum since it was the rate prevailing at that
time and for the enhanced amount of compensation, the rate of interest will be
7.5% per annum.
In the result, the appeal is allowed without any order as to costs.
cad
To
1. The Registrar
The Motor Accident Claims Tribunal
V Judge, Court of Small Causes
Chennai.
2. The Record Keeper
V.R. Section, High Court of Madras