Smt. Shanti Devi And Ors. vs Shri Asrar Ahmad And Another
2017 Latest Caselaw 5855 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
AFR
 

 
F.A.F.O. No. 10 of 2010
 

 
 Smt. Shanti Devi and others			...	Appellants
 

 
Versus 
 

 
Shri Asrar Ahmad & another 		...	Respondents
 

 
----------- 
 

 
Hon'ble Dr. Devendra Kumar Arora, J.

Hon'ble Rang Nath Pandey,J.

( Delivered by Hon'ble Dr. Devendra Kumar Arora,J.)

Heard learned Counsel for the appellants and Counsel for the Insurance Company and perused the judgment impugned. None has put in appearance on behalf of first respondent.

This appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the appellants-claimants for enhancement of the compensation as awarded vide judgment and award dated 15.9.2009 passed by Sri Arvind Kumar Mishra-I, Chairman, Motor Accident Claims Tribunal/District Judge, Bahraich in MACP No.201 of 2007 whereby the Tribunal has awarded a sum of Rupees one lac only with 6% interest per anum towards compensation.

In short, the factual matrix of the case is as follows:-

Shanti Devi, appellant no.1 is the mother of deceased- Vinod Pal whereas appellants nos. 2 to 6 are brother and sisters of the deceased. They had preferred Claim Petition No. 210 of 2007 seeking compensation for the death of young boy-Vinod Pal by a bus bearing registration No.DL 1P/2744. It is said that deceased Vinod Pal, a young lad of 12 years, was going to attend school at about 10 AM on 16.12.2006 by foot and when he reached near Primary School, Mukeria, a bus bearing registration no. DL 1P/ 2744 which was being driven rashly and negligently by its driver crushed the boy under the wheels, resulting in spontaneous death of Vinod Pal on the spot. His prospective monthly income has been mentioned as Rs. 5000/- per month by the claimants-appellants.

On the basis of pleading of the parties, the Tribunal formulated four issues and after appreciating the oral and documentary evidence led by both the parties recorded a finding that the accident took place due to rash and negligent driving by the driver of Bus No DL-1P/2744, which resulted into death of Vinod Pal.

As regard the issue no. 5, which is with regard to entitlement of amount of compensation and from whom, the learned Tribunal observed that claimant no.1 Smt. Shanti Devi herself got examined as P.W.1 and stated that her deceased son was a school going child and her elder son is aged 18 years. She had also deposed that she has five children and the deceased was the youngest one amongst them. No evidence was lead with regard to the status of the family. Therefore, the Tribunal considering all these aspects of the matter awarded a sum of Rupees One lac as compensation which was to be paid by the Insurance Company, with which the bus was insured.

The assertion of the appellants is that while awarding the compensation, the Tribunal has completely failed to consider that the grant of compensation is a beneficial piece of legislation and as such ought to have applied multiplier to the prospective income of the deceased,therefore, the amount of compensation is inadequate. Furthermore, no amount has been awarded under the head of funeral expenses, loss of estate, love and affection. In these circumstances, the amount of compensation is very meager and needs enhancement.

According to learned Counsel for the appellant, the Delhi High Court in the case of Chetan Malhotra Versus Lala Ram and other connected cases (decided on 13.5.2016) while giving reference to various pronouncement observed that in the case of R.K.Malik Vs. Kiran Pal; (2009) (14) SCC 1 the Apex Court has held that compensation for loss of dependency, by its very nature, is awarded for prospective or future loss and, therefore, it cannot be allowed to be argued that death of a child who is "still studying and not working" does not result in any pecuniary loss. But, the challenge before the tribunals and courts in determining "just and reasonable" compensation in such cases stems from the fact that there is virtually no evidence of actual loss of earnings of the deceased child.

Refuting the allegations of the appellants, learned Counsel for the Insurance Company has argued that the Tribunal has granted just compensation considering all aspect of the matter and there is no illegality or infirmity in the impugned judgment. The problem arises when the compensation is to be awarded in case of death of a child, because, the child may not be earning anything and may be studying. Therefore, in such cases, the parents cannot be said to be dependent on the child. But even then the parents would be suffering the loss of the child and for that they have to be compensated suitably. The Supreme Court recently in R.K. Malik versus Kiran Paul( supra) was dealing with a case of death of a child. After considering its earlier judgments on the point including Lata Wadhawa vs. State of Bihar; (2001)8 SCC 197 and M.S. Grewal vs. Deep Chand Sood [ (2001) INSC 420, wherein compensation in case of death of school children was granted, it was held that in addition to awarding compensation for pecuniary losses, the compensation was also to be granted with regard to future prospects of the child. The Supreme Court in R.K. Malik's case, had held in paragraph 27 as under:-

"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 awarded a sum of 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.

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 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. In the case of M. S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151, 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, the Apex Court opined 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.

In Grewal case (supra), compensation of Rs.5 lacs was awarded to the claimants and the same was held to be justified.

A forceful submission has been made by the learned counsel appearing for the claimants-appellants that the Tribunal has failed to consider the claims of the appellants with regard to the future prospects of the child. On perusal of the evidence on record, we find merit in such submission that the Court below has 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 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).

In view of discussion made hereinbefore, it is quite clear that 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 deceased was a school going child. Naturally, his future prospect would be presumed to be good and bright. Since he was a child, there is no yardstick to measure the loss of future prospects of this young boy.

However, recently, the Apex Court made a departure from its earlier judgment in the case of Puttamma and others vs. K. L. Narayana Reddy and another AIR 2014 SC 706, with regard to taking into consideration of future prospects of a child and held in paragraph 56 as under :-

"The Central Government was bestowed with duties to amend the Second Schedule in view of Section 163A(3), but it failed to do so for 19 years in spite of repeated observations of this Court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport and Highways to make the proper amendments to the Second Schedule table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by the Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under sub-section (3) of Section 163A of the Act, 1988 or amendment is made by the Parliament, we hold and direct that for children upto the age of 5 years shall be entitled for fixed compensation of Rs.1,00,000/- (Rupees one lac) and persons more than 5 years of age shall be entitled for fixed compensation of Rs.1,50,000/- (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher."

In the present case, the deceased being aged about 12 years on the date of accident, hence the above guide line can also be followed in fixing just compensation. Thus considering the facts of this case and applying the law laid down by Hon'ble Supreme Court of India in the above referred case, we hold that claimants are entitled to get a fixed compensation of Rs. 1,50,000/- (rupees one lac and fifty thousand) instead of Rs. One lac. This amount is inclusive of loss of love and affection and miscellaneous expenses like funeral etc. On the above amount claimants are entitled for interest @ 9% (nine) from the date of filling of the case till the date of payment in view of the decision rendered in Supe Dei v. National Insurance Co. Ltd and others (2009) 4 SCC 513. The aforesaid amount shall be deposited before the Tribunal concerned within a period of two months for disbursement to the claimants.

The appeal stands allowed in part in above terms and the impugned award stands modified to the above extent.

Registry is directed to transmit the record to the court concerned within a fortnight together with the amount, if any deposited by the Insurance company.

Order Date:27th October, 2017

MH/-

[Rang Nath Pandey,J] [Devendra Kumar Arora.J]