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FA/5085/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 5085 of 2008
With
CIVIL
APPLICATION No. 12471 of 2008
=========================================================
NEW
INDIA ASSURANCE CO LTD - Appellant(s)
Versus
FATAJI
KALAJI FULAJI ZALA & 3 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/10/2008
ORAL
ORDER
1. Heard
learned advocate Mr.S.B.Parikh for learned advocate Mr.R.H.Mehta on
behalf of appellant ? Assurance Co.
2. In
the present appeal, the appellant – Assurance Co. has challenged the
award passed by MAC Tribunal (Aux.), FTC No.8, Nadiad in MACP No.1757
of 1995, dated 22.5.2008 whereby the claims Tribunal has awarded
Rs.1,95,000/- with 9% interest in favour respondents claimants.
3. Learned
advocate Mr.Parikh raised contention before this Court that claims
Tribunal has committed gross error in awarding Rs.1,95,000/- with 9%
interest because of the death of minor Laxmiben, who was aged about 8
years. He also submitted that deceased was not a earning person at
the time of accident. Therefore, father and mother of the deceased
are not depending upon the income of the minor and therefore, they
are not entitled any amount of compensation and in such
circumstances, the claims Tribunal has committed gross error in
awarding the compensation in favour of parents. He relied upon the
decision of this Court reported in 23 (1) GLR 785 and submitted that
in such cases, 1/3rd dependency would be available and not
2/3rd. He also relied upon another decision reported in 26
(2) GLR 1315. He also submitted that claims Tribunal has committed
gross error in deducting 1/3rd amount and awarding 2/3rd
dependency which is contrary to the decision of the Apex Court
reported in 1999 ACJ 1400. He also submitted that multiplier of 15
which was applied is on higher side and looking to the age of
deceased minor, multiplier of 10 is reasonable. He also submitted
that claims Tribunal has committed gross error in awarding
Rs.1,80,000/- under head of dependency benefit, Rs.10,000/- under
head of loss of expectation of life, Rs.5000/- under head of funeral
expenses and in all, Rs.1,95,000/- has been awarded by claims
Tribunal with 9% interest against the claim of Rs.1,50,000/- is also
an error committed by claims Tribunal.
4. I
have considered the submissions made by learned advocate Mr.Parikh
and also perused the award in question. I have appreciated the
contention that minor is not the earning member and parents are not
dependent and therefore, in case of death of minor, the parents are
not entitled any compensation from the Insurance Co. because they are
not dependent has required compensation from the Insurance Co.
Therefore, in case of death of child / minor, no compensation can be
paid to parents by the Insurance Co. and claims Tribunal should have
to dismiss such claim petition. However, he submitted that dependency
should be considered 1/3rd in stead of 2/3rd.
I have considered the submissions made by learned advocate Mr.Parikh
and also perused the award passed by claims Tribunal. On 25.10.1995,
at about 10.00 am., the daughter of claimant ? Laxmiben died in the
accident because of rash and negligent driving of opponent No.1.
Thereafter, claim petition was filed claiming Rs.1,50,000/- by the
claimants. The Insurance Co. has filed its written statement vide
Exh.30 and thereafter, issues have been framed by the claims Tribunal
vide Exh.35. Thereafter, the claims Tribunal has examined Fataji
Kalaji Jhala vide Exh.38 and thereafter, considering the complaint
Exh.44, the claims Tribunal has come to conclusion that there was
rash and negligent driving of opponent No.1. Thereafter, the claims
Tribunal has considered the quantum in issue No.2 in Para.7 of the
award and after considering the affidavit Exh.38 of the parents, the
claims Tribunal has come to conclusion that minor Laxmi was not the
earning member, therefore, notional income of Rs.1500/- is required
to be taken in account and 1/3rd has been deducted and
therefore, Rs.1000/- is awarded for dependency and looking to the age
of minor as 8 years, multiplier of 15 was applied and accordingly, it
comes to Rs.1,80,000/-. The claims Tribunal has also considered that
minor deceased was having three brothers and they have lost their
sister and therefore, for expectation of life, Rs.10,000/- has been
awarded and Rs.5000/- for funeral expenses and in all, Rs.1,95,000/-
has been awarded as compensation by the claims Tribunal to the
respondents claimants.
5. The
contention which has been raised by the Insurance Co. that claimant
has filed the claim petition for Rs.1,50,000/-, therefore, the claims
Tribunal ought not to have awarded more compensation than what was
claimed. However, the claims Tribunal has considered the decision of
Apex Court in case of Nagappa v. Gurudayal and Others reported in
2003 (1) SRJ 580. Apart from that, there is no provision is made in
the MV Act which restricts the power of claims Tribunal of not
awarding more compensation than claimed. After all, the claims
Tribunal has to consider just compensation is to be awarded. Apart
from that, claim made by claimant under Section 168 of the MV Act.
Therefore, according to my opinion, the contentions raised by learned
advocate Mr.Parikh cannot be accepted in light of the decision of
Apex Court in case of New India Assurance Co. ltd. v. Satender and
Ors. Reported in 2006 (11) Scale 589 wherein the Apex Court has
awarded Rs.1,80,000/- applying the principles enunciated in case of
State of Haryana v. Jasbir Kaur and Ors., reported in (2003) 7 SCC
484. In the aforesaid decision, the Apex Court has discussed the law
laid down in case of Jasbir Kaur (Supra) and Lata Wadhwa v. State of
Bihar reported in (2001) 8 SCC 197 and observed in Para.7, 8, 9, 10
and 11 as under :
?S7. In
Mallett v. McMonagle 1970 (AC) 166, Lord Diplock analysed
in detail the uncertainties which arise at various stages in making a
rational estimate and practical ways of dealing with them. In Davies
v. Taylor (1974) AC 207, it was held that the Court, in looking at
future uncertain events, does not decide whether on balance one thing
is more likely to happen than another, but merely puts a value on the
chances.A possibility may be ignored if it is slight
and remote. Any method
of calculation is subordinate to the necessity for compensating the
real loss. But a practical approach to the calculation of the
damages has been stated by Lord Wright in Davies v. Powell Duffryn
Associated Colleries Ltd. (1942) 1 All ER 657, in the following
words:
?SThe
starting point is the amount of wages
which the deceased was earning, the ascertainment of which to some
extent may depend on the regularity of his employment. Then
there is an estimate of how much was required
to be spent for his own personal and living expenses. The balance
will give a datum or basic figure which will generally be turned into
a lump sum by taking a certain number of years?” purchase.??
8. In State of Haryana and Anr. v. Jasbir Kaur and Ors.
(2003(7)
SCC 484) it was held as under:
?S7.
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 ?Sdamages?? which in turn appears to it to be ?Sjust and
reasonable??. It has to be borne in mind that compensation for loss
of limbs 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 ?Sjust?? 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
?Swhich 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. (See Helen C. Rebello v. Maharashtra
SRTC (1999(1) SCC 90).
9. There
are some aspects of human life which are capable of
monetary measurement, but the totality of human life is like the
beauty of sunrise or the splendor of the stars, beyond the reach of
monetary tape-measure. The determination of damages for loss of
human life is an extremely difficult task and it becomes all the more
baffling when the deceased is a child and/or a non-earning person.
The future of a child is uncertain. Where the deceased was a child,
he was earning nothing but had a prospect to earn. The question of
assessment of compensation, therefore, becomes stiffer. The figure
of compensation in such cases involves a good deal of guesswork. In
cases, where parents are claimants, relevant factor would be age of
parents.
10. In
case of the death of an infant, there may have been no
actual pecuniary benefit derived by its parents during the child?”s
life-time. But this will not necessarily bar the parent?”s claim and
prospective loss will find 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 Rly. V. Jenkins (1913) AC 1,
and Lord Atkinson said thus:
?S…..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 fact ? there 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.?? (See Lata Wadhwa and Ors. v.
State of Bihar and Ors.(2001 (8) SCC 197).
11. This
Court in Lata Wadhwa?”s case (supra) while computing
compensation made distinction between deceased children falling
within the age group of 5 to 10 years and age group of 10 to 15
years.??
6. After
observing upto Para.7 to 11, the relevant observation which applies
to the facts of this case are that in cases of young
children of tender age, in view of uncertainties
abound, neither their income at the time of death nor the prospects
of the future increase in their income nor chances of advancement of
their career are capable of proper determination on estimated basis.
The reason is that at such an early age, the uncertainties in regard
to their academic pursuits, achievements in career and thereafter
advancement in life are so many that nothing can be assumed with
reasonable certainty. Therefore, 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.
7. Therefore,
the Apex Court has applied the principle in case of Jasbir Kaur
(supra) and awarded Rs.1,80,000/- being a reasonable compensation to
the parents. Therefore, according to my opinion, dependency which has
been decided by the claims Tribunal at Rs.1,80,000/- and Rs.10,000/-
for expectation of life and Rs.5000/- for funeral expenses, that
cannot be considered to be the compensation in real sense but, it is
the expenses which have been awarded by claims Tribunal. Therefore,
the contentions raised by learned advocate Mr.Parikh cannot be
accepted and same are rejected. Therefore, considering the decision
of Apex Court as referred above, according to my opinion, the claims
Tribunal has rightly awarded just compensation, even then claimed by
claimants. Therefore, the Tribunal has not committed any error which
requires interference by this Court. Therefore, there is no substance
in the present appeal. Accordingly, present appeal is dismissed. The
amount, If any, deposited with this Court for the purpose of appeal
shall be transmitted to the Tribunal concerned.
8. As the First Appeal No.5085 of 2008 is dismissed, no order is necessitated in Civil Application No.12471 of 2008. Accordingly, Civil Application No.12471 of 2008 is disposed of.
(H.K.RATHOD,J.)
(vipul)
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