5
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.265/2000
Date of Decision: 7th September, 2009
%
NAURANG DEVI ..... Appellant
Through : Mr. Rajesh Sharma, Adv.
versus
MAN SINGH ..... Respondent
Through : Mr. Balram Tyagi, Adv.
for R - 2.
Mr. Sameer Nandwani, Adv.
for R - 3.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT (Oral)
1. The appellant has challenged the award of the learned
Tribunal whereby compensation of Rs.60,000/- has been
awarded to the appellant. The appellant seeks enhancement
of the award amount.
2. The accident dated 13th August, 1993 resulted in the
death of Udayvir. The deceased was survived by his parents
who filed the claim petition before the learned Tribunal.
FAO.No.265/2000 Page 1 of 17
3. The deceased was aged 12 years at the time of the
accident. The deceased was crossing the road when he was
hit by offending vehicle bearing No.DBH-7935 resulting in his
death.
4. The learned Tribunal awarded compensation of
Rs.60,000/- without giving any basis on which the award
amount was computed.
4. The learned counsel for the appellant refers and relies
upon the judgment of this Court in the case of National
Insurance Co. Ltd. Vs. Farzana, MAC APP. No.13/2007
decided on 14th July, 2009 in which compensation of
Rs.3,75,000/- has been determined in respect of the death of
a child aged 7 years, following the judgments of the Hon‟ble
Supreme Court and this Court in the cases of Manju Devi
Vs. Musafir Paswan, VII (2005) SLT 257, Sobhagya
Devi Vs. Sukhvir Singh, II (2006) ACC 1997, Syam
Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320, R.K.
Malik vs. Kiran Pal, III (2006) ACC 261, R.K. Malik vs.
Kiran Pal, 2009(8) Scale 451. This Court held as under: –
“4. In the case of Manju Devi Vs. Musafir
Paswan, VII (2005) SLT 257, the Hon‟ble
Supreme Court awarded compensation of
Rs.2,25,000/- in respect of death of a 13-years
old boy by applying the multiplier of 15 and
taking the notional income of Rs.15,000/- as per
the Second Schedule of the Motor Vehicles Act.
The relevant portion of the said judgment is
reproduced hereunder:-
“As set out in the Second Schedule to
the Motor Vehicles Act, 1988, for a
boy of 13 years of age, a multiplier of
FAO.No.265/2000 Page 2 of 17
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/-”
5. The case of Sobhagya Devi & Ors. Vs.
Sukhvir Singh & Ors., II (2006) ACC 1997
relates to the death of a 12-year old boy.
Following the decision of the Apex Court in
Manju Devi’s case (supra), the Rajasthan High
Court awarded Rs.2,25,000/- by applying the
Second Schedule of the Motor Vehicles Act.
6. The case of Syam Narayan Vs. Kitty
Tours & Travels, 2006 ACJ 320 relates to the
death of a child aged 5 years. This Court relying
on the judgment of the Apex Court in Manju
Devi’s case (supra) awarded compensation to
the parents by applying the notional income of
Rs.15,000/- and multiplier of 15 as per the
Second Schedule and further awarded
Rs.50,000/- for loss of company of the child as
also pain and suffering by them. The relevant
portion of the said judgment is reproduced
hereunder:-
“3. By and under the award dated
5.12.2003, a sum of Rs.1,00,000/- has
been awarded to the appellants.
While awarding sum of Rs.1,00,000/-
to appellants, learned M.A.C.T. has
held that the income of the deceased
child was incapable of assessment or
estimation. Recognising that every
parent has a reasonable expectation
of financial and moral support from
his child, in the absence of any
evidence led, learned M.A.C.T. opined
that the interest of justice requires
that appellants are compensated with
the sum of Rs.1,00,000/-.
4. Had the Tribunal peeped into
the Second Schedule, as per section
163-A of Motor Vehicles Act, 1988, it
would have dawned on the Tribunal
that vide serial No.6, notional income
for compensation in case of fatal
accidents has been stipulated at
Rs.15,000/- per annum.
FAO.No.265/2000 Page 3 of 17
5. In the decision reported as
Manju Devi V. Musafir Paswan, 2005
ACJ 99 (SC), dealing with the
accidental death of 13 years old boy,
while awarding compensation under
the Motor Vehicles Act, 1988, Apex
Court took into account the notional
income stipulated in the Second
Schedule being Rs.15,000/- per
annum.
6. In the instant case, baby Chanda
was aged 5 years. Age of the
appellants as on date of accident was
28 years and 26 years respectively as
recorded in the impugned award.
Applying a multiplier of 15 as set out
in Second Schedule which refers to
the said multiplier, where age of the
victim is upto 15 years, compensation
determinable comes to Rs.15,000 x
15 = Rs.2,25,000/-.
7. The learned Tribunal has
awarded Rs.1,00,000/- towards loss of
expectation of financial and moral
support as also loss of company of the
child, mental agony, etc. I have found
that the parents are entitled to
compensation in the sum of
Rs.2,25,000/- on account of loss of
financial support from the deceased
child. I award a sum of Rs.50,000/- on
account of loss of company of the
child as also pain and suffering
suffered by them as a result of the
untimely death of baby Chanda.
Appeal accordingly stands disposed of
enhancing the compensation to
Rs.2,75,000/-.
7. In the case of R.K. Malik vs. Kiran Pal, III
(2006) ACC 261, 22 children died in an accident
of a school bus which fell in river Yamuna. This
Court held the Second Schedule of the Motor
Vehicles Act to be the appropriate method for
computing the compensation. With respect to
the non-pecuniary damages, the Court observed
that loss of dependency of life and pain and
suffering on that account, generally speaking is
same and uniform to all regardless of status
unless there is a specific case made out for
FAO.No.265/2000 Page 4 of 17
deviation. This Court awarded Rs.75,000/-
towards non-pecuniary compensation.
8. The aforesaid judgment of this Court was
challenged before the Hon‟ble Supreme Court
and which has been decided recently on 15th
May, 2009 and is reported as R.K. Malik vs.
Kiran Pal, 2009(8) Scale 451. The Hon‟ble
Supreme Court held that the claimants are also
entitled to compensation towards future
prospects. The Hon‟ble Supreme Court held that
the claimants are entitled to compensate
towards future prospects and granted further
compensation of Rs.75,000/- towards future
prospects of the children. The findings of the
Hon‟ble Supreme Court are as under:-
“19. The other issue is with regard to
non-pecuniary compensation to the
appellants-dependents on the loss of
human life, loss of company,
companionship, happiness, pain and
suffering, loss of expectation of life
etc.
20. In the Halsbury’s Laws of
England, 4th Edition, Vol. 12, page
446, it has been stated with regard to
non-pecuniary loss as follows:
“Non-pecuniary loss: the
pattern. Damages awarded for
pain and suffering and loss of
amenity constitute a
conventional sum which is taken
to be the sum which society
deems fair, fairness being
interpreted by the Courts in the
light of previous decisions. Thus
there has been evolved a set of
conventional principles
providing a provisional guide to
the comparative severity of
different injuries, and indicating
a bracket of damages into which
a particular injury will currently
fall. The particular circumstance
of the plaintiff, including his age
and any unusual deprivation he
may suffer, is reflected in the
actual amount of the award. The
FAO.No.265/2000 Page 5 of 17
fall in the value of money leads
to a continuing reassessment of
these awards and to periodic
reassessments of damages at
certain key points in the pattern
where the disability is readily
identifiable and not subject to
large variations in individual
cases.
21. In the case of Ward v. James
(1965) I All E R 563, it was observed:
“Although you cannot give a
man so gravely injured much for
his `lost years’, you can,
however, compensate him for
his loss during his shortened,
span, that is, during his
expected `years of survival’. You
can compensate him for his loss
of earnings during that time, and
for the cost of treatment,
nursing and attendance. But
how can you compensate him
for being rendered a helpless
invalid? He may, owing to brain
injury, be rendered unconscious
for the rest of his days, or, owing
to a back injury, be unable to
rise from his bed. He has lost
everything that makes life
worthwhile. Money is no good to
him. Yet Judges and juries have
to do the best they can and give
him what they think is fair. No
wonder they find it well nigh
insoluble. They are being asked
to calculable. The figure is
bound to be for the most part a
conventional sum. The Judges
have worked out a pattern, and
they keep it in line with the
changes in the value of money.
22. The Supreme Court in the case of
R.D. Hattangadi v. Pest Control (India)
(P) Ltd., (1995) 1 SCC 551, at page
556, has observed as follows in
para 9:
FAO.No.265/2000 Page 6 of 17
“9. Broadly speaking while fixing
an amount of compensation
payable to a victim of an
accident, the damages have to
be assessed separately as
pecuniary damages and special
damages. Pecuniary damages
are those which the victim has
actually incurred and which are
capable of being calculated in
terms of money; whereas non-
pecuniary damages are those
which are incapable of being
assessed by arithmetical
calculations. In order to
appreciate two concepts
pecuniary damages may include
expenses incurred by the
claimant: (i) medical
attendance; (ii) loss of earning
of profit up to the date of trial;
(iii) other material loss. So far
non-pecuniary damages are
concerned, they may include (i)
damages for mental and
physical shock, pain and
suffering, already suffered or
likely to be suffered in future; (ii)
damages to compensate for the
loss of amenities of life which
may include a variety of matters
i.e. on account of injury the
claimant may not be able to
walk, run or sit; (iii) damages for
the loss of expectation of life,
i.e., on account of injury the
normal longevity of the person
concerned is shortened; (iv)
inconvenience, hardship,
discomfort, disappointment,
frustration and mental stress in
life.”
In this case, the Court awarded
non-pecuniary special damages
of Rs. 3, 00,000/- to the
claimants.
23. In Common Cause, A Registered
Society v. Union of India (1999) 6 SCC
667 @ page 738, it was observed:
FAO.No.265/2000 Page 7 of 17
“128. The object of an award of
damages is to give the plaintiff
compensation for damage, loss
or injury he has suffered. The
elements of damage recognised
by law are divisible into two
main groups: pecuniary and
non-pecuniary. While the
pecuniary loss is capable of
being arithmetically worked out,
the non-pecuniary loss is not so
calculable. Non-pecuniary loss is
compensated in terms of money,
not as a substitute or
replacement for other money,
but as a substitute, what
McGregor says, is generally
more important than money: it
is the best that a court can do.
In Mediana, Re Lord Halsbury,
L.C. observed as under: “How is
anybody to measure pain and
suffering in moneys counted?
Nobody can suggest that you
can by arithmetical calculation
establish what is the exact sum
of money which would represent
such a thing as the pain and
suffering which a person has
undergone by reason of an
accident…. But nevertheless the
law recognises that as a topic
upon which damages may be
given.”
24. It is extremely difficult to quantify
the non pecuniary compensation as it
is to a great extent based upon the
sentiments and emotions. But, the
same could not be a ground for non-
payment of any amount whatsoever
by stating that it is difficult to quantify
and pinpoint the exact amount
payable with mathematical accuracy.
Human life cannot be measured only
in terms of loss of earning or
monetary losses alone. There are
emotional attachments involved and
loss of a child can have a devastating
effect on the family which can be
easily visualized and understood.
FAO.No.265/2000 Page 8 of 17
Perhaps, the only mechanism known
to law in this kind of situation is to
compensate a person who has
suffered non-pecuniary loss or
damage as a consequence of the
wrong done to him by way of
damages/monetary compensation.
Undoubtedly, when a victim of a
wrong suffers injuries he is entitled to
compensation including compensation
for the prospective life, pain and
suffering, happiness etc., which is
sometimes described as
compensation paid for “loss of
expectation of life”. This head of
compensation need not be restricted
to a case where the injured person
himself initiates action but is equally
admissible if his dependant brings
about the action.
25. That being the position, the
crucial problem arises with regard to
the quantification of such
compensation. The injury inflicted by
deprivation of the life of a child is
extremely difficult to quantify. In view
of the uncertainties and contingencies
of human life, what would be an
appropriate figure, an adequate
solatium is difficult to specify. The
courts have therefore used the
expression “standard compensation”
and “conventional amount/sum” to
get over the difficulty that arises in
quantifying a figure as the same
ensures consistency and uniformity in
awarding compensations.
26. While quantifying and arriving at a
figure for “loss of expectation of life”,
the Court have to keep in mind that
this figure is not to be calculated for
the prospective loss or further
pecuniary benefits that has been
awarded under another head i.e.
pecuniary loss. The compensation
payable under this head is for loss of
life and not loss of future pecuniary
prospects. Under this head,
compensation is paid for termination
FAO.No.265/2000 Page 9 of 17
of life, which results in constant pain
and suffering. This pain and suffering
does not depend upon the financial
position of the victim or the claimant
but rather on the capacity and the
ability of the deceased to provide
happiness to the claimant. This
compensation is paid for loss of
prospective happiness which the
claimant/victim would have enjoyed
had the child not been died at the
tender age.
27. In the case of Lata Wadhwa
(supra), wherein several persons
including children lost their lives in a
fire accident, the Court awarded
substantial amount as compensation.
No doubt, the Court noticed that the
children who lost their lives were
studying in an expensive school, had
bright prospects and belonged to
upper middle class, yet it cannot be
said that higher compensation
awarded was for deprivation of life
and the pain and suffering undergone
on loss of life due to financial status.
The term “conventional
compensation” used in the said case
has been used for non pecuniary
compensation payable on account of
pain and suffering as a result of
death. The Court in the said case
referred to Rs. 50, 000/- as
conventional figure. The reason was
loss of expectancy of life and pain and
suffering on that account which was
common and uniform to all regardless
of the status. Unless there is a specific
case departing from the conventional
formula, non- pecuniary
compensation should not be fixed on
basis of economic wealth and
background.
28. In Lata Wadhawa case (supra),
wherein the accident took place on
03.03.1989, the multiplier method
was referred to and adopted with
approval. In cases of children between
5 to 10 years of age, compensation of
FAO.No.265/2000 Page 10 of 17
Rs. 1.50 lakhs was awarded towards
pecuniary compensation and in
addition a sum of Rs. 50,000/- was
awarded towards `conventional
compensation”. In the case of children
between 10 to 18 years compensation
of Rs. 4.10 lakhs was awarded
including “conventional
compensation”. While doing so the
Supreme Court held that contribution
of each child towards family should be
taken as Rs. 24,000/- per annum
instead of Rs. 12, 000/- per annum as
recommended by Justice Y.
V.Chandrachud Committee. This was
in view of the fact that the company
in question had an un-written rule
that every employee can get one of
his children employed in the said
company.
29. In the case of M.S. Grewal v. Deep
Chand Sood MANU/SC/0506/2001,
wherein 14 students of a public school
got drowned in a river due to
negligence of the teachers. On the
question of quantum of
compensation, this Court accepted
that the multiplier method was
normally to be adopted as a method
for assigning value of future annual
dependency. It was emphasized that
the Court must ensure that a just
compensation was awarded.
30. In Grewal case (supra),
compensation of Rs. 5 lakhs was
awarded to the claimants and the
same was held to be justified. Learned
Counsel for the respondent No. 3,
however, pointed out that in the said
case the Supreme Court had noticed
that the students belonged to an
affluent school as was apparent from
the fee structure and therefore the
compensation of Rs. 5 lakhs as
awarded by the High Court was not
found to be excessive. It is no doubt
true that the Supreme Court in the
said case noticed that the students
belonged to an upper middle class
FAO.No.265/2000 Page 11 of 17
background but the basis and the
principle on which the compensation
was awarded in that case would
equally apply to the present case.
31. A forceful submission has been
made by the learned Counsels
appearing for the claimants-
appellants that both the Tribunal as
well as the High Court failed to
consider the claims of the appellants
with regard to the future prospects of
the children. It has been submitted
that the evidence with regard to the
same has been ignored by the Courts
below. On perusal of the evidence on
record, we find merit in such
submission that the Courts below
have overlooked that aspect of the
matter while granting compensation.
It is well settled legal principle that in
addition to awarding compensation
for pecuniary losses, compensation
must also be granted with regard to
the future prospects of the children. It
is incumbent upon the Courts to
consider the said aspect while
awarding compensation. Reliance in
this regard may be placed on the
decisions rendered by this Court in
General Manager, Kerala S. R. T. C. v.
Susamma Thomas(1994) 2 SCC 176;
Sarla Dixit v. Balwant Yadav (1996) 3
SCC 179; and Lata Wadhwa case
(supra).
32. In view of discussion made
hereinbefore, it is quite clear the
claim with regard to future prospect
should have been be addressed by
the courts below. While considering
such claims, child’s performance in
school, the reputation of the school
etc. might be taken into
consideration. In the present case,
records shows that the children were
good in studies and studying in a
reasonably good school. Naturally,
their future prospect would be
presumed to be good and bright.
Since they were children, there is no
FAO.No.265/2000 Page 12 of 17
yardstick to measure the loss of
future prospects of these children. But
as already noted, they were
performing well in studies, natural
consequence supposed to be a bright
future. In the case of Lata Wadhwa
(supra) and M. S. Grewal (supra), the
Supreme Court recognised such
future prospect as basis and factor to
be considered. Therefore, denying
compensation towards future
prospects seems to be unjustified.
Keeping this in background, facts and
circumstances of the present case,
and following the decision in Lata
Wadhwa (supra) and M. S. Grewal
(supra), we deem it appropriate to
grant compensation of Rs. 75,000/-
(which is roughly half of the amount
given on account of pecuniary
damages) as compensation for the
future prospects of the children, to be
paid to each claimant within one
month of the date of this decision. We
would like to clarify that this amount
i.e. Rs. 75,000/- is over and above
what has been awarded by the High
Court.
33. Besides, the Courts have been
awarding compensation for pain and
suffering and towards non-pecuniary
damages. Reference in this regard
can be made to R. D. Hattangadi case
(supra). Further, the said
compensation must be just and
reasonable. This Court has observed
as follows in State of Haryana v. Jasbir
Kaur (2003) 7 SCC 484:
“7. It has to be kept in view that
the Tribunal constituted under
the Act as provided in Section
168 is required to make an
award determining the amount
of compensation which is to be
in the real sense “damages”
which in turn appears to it to be
“just and reasonable”. It has to
be borne in mind that
compensation for loss of limbs
FAO.No.265/2000 Page 13 of 17
or life can hardly be weighed in
golden scales. But at the same
time it has to be borne in mind
that the compensation is not
expected to be a windfall for the
victim. Statutory provisions
clearly indicate that the
compensation must be “just”
and it cannot be a bonanza; not
a source of profit; but the same
should not be a pittance. The
courts and tribunals have a duty
to weigh the various factors and
quantify the amount of
compensation, which should be
just. What would be “just”
compensation is a vexed
question. There can be no
golden rule applicable to all
cases for measuring the value of
human life or a limb. Measure of
damages cannot be arrived at
by precise mathematical
calculations. It would depend
upon the particular facts and
circumstances, and attending
peculiar or special features, if
any. Every method or mode
adopted for assessing
compensation has to be
considered in the background of
“just” compensation which is the
pivotal consideration. Though by
use of the expression “which
appears to it to be just” a wide
discretion is vested in the
Tribunal, the determination has
to be rational, to be done by a
judicious approach and not the
outcome of whims, wild guesses
and arbitrariness. The
expression “just” denotes
equitability, fairness and
reasonableness, and non-
arbitrary. If it is not so it cannot
be just.”
34. So far as the pecuniary damage is
concerned we are of the considered
view both the Tribunal as well as the
High Court has awarded the
FAO.No.265/2000 Page 14 of 17
compensation on the basis of Second
Schedule and relevant multiplier
under the Act. However, we may
notice here that as far as non-
pecuniary damages are concerned,
the Tribunal does not award any
compensation under the head of non-
pecuniary damages. However, in
appeal the High Court has elaborately
discussed this aspect of the matter
and has awarded non-pecuniary
damages of Rs. 75,000. Needless to
say, pecuniary damages seeks to
compensate those losses which can
be translated into money terms like
loss of earnings, actual and
prospective earning and other out of
pocket expenses. In contrast, non-
pecuniary damages include such
immeasurable elements as pain and
suffering and loss of amenity and
enjoyment of life. In this context, it
becomes duty of the court to award
just compensation for non-pecuniary
loss. As already noted it is difficult to
quantify the non-pecuniary
compensation, nevertheless, the
endeavour of the Court must be to
provide a just, fair and reasonable
amount as compensation keeping in
view all relevant facts and
circumstances into consideration. We
have noticed that the High Court in
present case has enhanced the
compensation in this category by Rs.
75, 000/- in all connected appeals. We
do not find any infirmity in that
regard.”
9. The learned Tribunal was in error in taking
the notional income to be Rs.22,500/- per
annum. Following the aforesaid judgments, the
notional income of the deceased is taken to be
Rs.15,000/- per annum and applying the
multiplier of 15, the claimants are entitled to loss
of dependency of Rs.2,25,000/-. The claimants
are also entitled to compensation of Rs.75,000/-
towards the future prospects in terms of the
judgment of the Hon‟ble Supreme Court in R.K.
Malik Vs. Kiran Pal, 2009 (8) Scale 451. The
claimants are also entitled to a further sum of
FAO.No.265/2000 Page 15 of 17
Rs.75,000/- towards non-pecuniary damages in
terms of the judgment of this Court in the case of
R.K. Malik Vs. Kiran Pal, III (2006) ACC 261
upheld by the Hon‟ble Supreme Court. The
claimants are entitled to total compensation of
Rs.3,75,000/- (Rs.2,25,000/- + Rs.75,000/- +
Rs.75,000/-).”5. The learned counsel for the appellant submits that the
principles of law laid down in the above cases are applicable
to the present case. In the case of National Insurance
Company Ltd. Vs. Farzana (Supra), it has been held that
the parents of the child aged 7 are entitled to pecuniary
compensation of Rs.2,25,000/- according to the Second
Schedule of the Motor Vehicles Act. Further Rs.75,000/- has
been awarded as non-pecuniary damages following the
judgment of this Court in the case of R.K. Malik vs. Kiran
Pal, III (2006) ACC 261. Rs.75,000/- has been awarded
towards future prospects following the judgment of the
Hon‟ble Supreme Court in the case of R.K. Malik vs. Kiran
Pal, 2009(8) Scale 451.
6. This case is squarely covered by the aforesaid
judgment of this Court which related to the case of 7 year old
child whereas the deceased in the present case was 12 years
old. Following the aforesaid judgment, Rs.2,25,000/- is
awarded towards pecuniary damages following the Second
Schedule of the Motor Vehicles Act, Rs.75,000/- is awarded
towards non-pecuniary damages and Rs.75,000/- is awarded
towards future prospects. The total compensation awarded
is Rs.3,75,000/-.
FAO.No.265/2000 Page 16 of 17
7. The appeal is allowed and the award amount is
enhanced from Rs.60,000/- to Rs.3,75,000/-. The learned
Tribunal has awarded the interest @12% per annum which is
not disturbed in respect of the original award amount of
Rs.60,000/-. However, on the enhanced award amount, the
appellants shall be entitled to the interest @7.5% per annum
from the date of filing of the petition till date of realization.
8. Respondent No.3 is directed to deposit the enhanced
award amount along with interest with the learned Tribunal
within 30 days. Upon the said amount being deposited, the
learned Tribunal shall release a sum of Rs.50,000/- to each of
the two appellants. The remaining amount be kept in fixed
deposit in the joint names of the appellants for a period of
five years on which monthly interest shall be paid to them
but no loan, advance or withdrawal be permitted without the
permission of the learned Tribunal.
9. Copy of this order be given „Dasti‟ to learned counsel
for the parties under the signature of Court Master.
J.R. MIDHA, J
SEPTEMBER 07, 2009
mkFAO.No.265/2000 Page 17 of 17