Smt. Savitri Devi Gupta W/O Shri ... vs Swaran Kumar Ram Kumar, Kalu Ram ...
2004 Latest Caselaw 621 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellants are aggrieved by an Award dated 14th June, 1988 passed by the learned Motor Accidents Claims Tribunal (MACT) in Suit No. 273/1985.

2. Krishan Gopal, aged about 14-15 years, the Appellants' the son, died in an accident caused by a bus on 11th April, 1985. The deceased was a student of 9th class in DAV School, Darya Ganj, New Delhi and it was stated in the claim petition for compensation filed under the provisions of the Motor Vehicles Act (the Act) that he was assisting his father by sitting in the shop and was thereby contributing to the family income.

3. The learned MACT found that the death of Krishan Gopal had occurred due to rash and negligent driving by Respondent No.2. As regards compensation claimed by the Appellants, the learned MACT awarded a sum of Rs. 25,000/- with 12% interest per annum from the date of the Award. Although an argument was raised that interest should be awarded from the date of filing the petition, that is, 7th May, 1985, this contention was rejected by the learned MACT on the ground that the Appellants concluded their evidence only on 5th January, 1988 and thereafter the claim was kept pending on account of a strike by lawyers. The Respondents did not take any date for examining their witnesses and in fact they did not examine any witness in support of their contentions. The Award was eventually passed on 14th June, 1988. It was held by the learned MACT that since the delay was not attributable to the Respondents, interest should not be awarded from the date of filing the claim petition, but from the date of the Award. The date from which interest is due to the Appellants has not been challenged by learned counsel.

4. The question that arises in a case such as the present is what is the amount of compensation that is due and payable on the accidental death of a child of say about 15 years of age who is studying in a school.

5. The sheet anchor of submissions made by learned counsel for the Appellants was the decision of the Supreme Court in Lata Wadhwa vs. State of Bihar, and M.S. Grewal vs. Deep Chand Sood, . The law laid down in both these cases by the august Supreme Court is, of course, applicable but on facts, both these decisions are, unfortunately, clearly distinguishable.

6. A learned Single Judge of this Court in Salma Begum vs. Vinod Kumar Malhotra, 2003 VII AD (Delhi) 522 rejected the contention that Lata Wadhwa would be applicable in cases such as the present, as it was rendered by the Supreme Court in the peculiar facts of that case. In Salma Begum, a four year old boy died in a road accident. It is not clear when the accident took place. However, the learned MACT awarded a sum of Rs. 1,00,000/- as compensation in favor of the Appellants. It was noted that the father of the child was working in a shop and was getting a salary of Rs. 3,000/- per month but the same was not proved. Nevertheless, the compensation awarded by the learned MACT was not disturbed by the learned Single Judge. Non-pecuniary damages towards loss of affection and funeral expenses were, however, granted by the learned Single Judge.

7. In Amar Singh Thukral vs. Sandeep Chhatwal, FAO No. 9 of 1989 decided on 5th July 2004, I have otherwise dealt with the applicability of Lata Wadhwa to claims for statutory compensation. I have concluded, following the consistent view of this Court, including a Division Bench, that Lata Wadhwa is not applicable to such like cases. For the same reasons, M.S. Grewal would also not be applicable. Therefore, on what basis does one assess the compensation due to the Appellants?

8. In Balwanti Devi vs. Surjit Singh, , I had dealt with the case of an accidental death of a young man of 25 years of age who had completed his graduation and was a final year student in an ayurvedic college. I had observed the difficulty in making a precise assessment of the amount of compensation that should be awarded in such like cases where there was no clear cut evidence of the earning capacity of the deceased.

9. Shanti Bai vs. Charan Singh, was a case in which an 18 year old boy was run over by a truck in April, 1991. He belonged to a labour class and his younger brother was doing manual labour and earning Rs. 10/- per day. Taking this into consideration, the Supreme Court was of the view that the compensation of Rs. 40,000/- awarded by the learned MACT and upheld by the High Court was too meager. The Supreme Court deemed it fit to increase the award to a lump-sum amount of Rs. 1,50,000/-.

10. In Krishan Lal Baweja vs. Sudershan, (DB) a 13 year old student died in a road accident in December, 1978. The learned MACT awarded a sum of Rs.25,000/- as compensation for his death, which was upheld by a learned Single Judge of this Court. The Division Bench noted the decision of the Supreme Court in Shanti Bai but was of the view that that decision "could not possibly apply to child death cases which were surrounded by too many imponderables". The Division Bench, therefore, declined to interfere with the award of compensation of Rs. 25,000/-.

11. Learned counsel for the Appellants relied upon Rajasthan State Road Transport Corporation vs. Kanchan Bai, 2000 ACJ 614 in which the Rajasthan High Court upheld the estimated value of dependency of a student of 8th class at Rs. 1,200/- per month assessed by the learned MACT and on this basis awarded a sum of Rs. 1,44,000/-. It is not clear from the decision as to how the learned MACT or the High Court came to the conclusion that the value of dependency of the student was Rs. 1,200/- per month. It is also not clear when the accident took place.

12. In a case such as the present, the difficulty in making an accurate assessment is obvious because the deceased was a student aged about 14-15 years of age with no apparent source of income, although it was stated that he was assisting his father by sitting in a shop. If one goes by the Second Schedule to the Act, which was incorporated therein in November,1994, Note 6 thereof provides that notional income for compensation to those who had no income prior to the accident should be taken as Rs. 15,000/- per annum (or Rs.1,250/- per month). In the present case, the accidental death took place in April, 1985 which is almost ten years earlier. Consequently, one would have to relate back the figure of Rs. 1250/- per month laid down by Parliament in November, 1994 to an equivalent figure in April, 1985.

13. Around November, 1994, the Minimum Rates of Wages in Delhi for an unskilled worker, which is what I would expect a school boy to be, were Rs. 1,420/- per month which is slightly more than what is postulated by the Second Schedule. At the time when Krishan Gopal died in 1985, the minimum rates of wages as applicable to an unskilled worker with effect from 6th June, 1984 were Rs. 354/- per month. Making a proportionate reduction and for the purposes of easier calculation, I would estimate the earning capacity of the deceased at Rs. 280/- per month. Applying the formula laid down by the august Supreme Court in Sarla Dixit vs. Balwant Yadav, , the gross monthly average income of the deceased would work out to Rs. 850/- per month (1420+ 280 = 1700/2 = 850).

14. The parents of the deceased, as mentioned in the impugned Award, were 37 years (father) and 35 years (mother). Applying the table available in the Second Schedule, the appropriate multiplier would be 16.

15. However, in Municipal Corporation of Greater Bombay vs. Laxman Iyer, , the deceased was about 18 years of age and his parents were 47 years (father) and 43 years (mother). The applicable multiplier, in so far as the mother of the deceased was concerned, is 15 as per the Second Schedule to the Act but the Supreme Court noted in paragraph 12 of the Report that the multiplier in that case could not exceed 10 even by the most liberal standards. The reason for this was the possibility of reduction in the contribution of the deceased once he gets married. Since the deceased in that case was about 18 years of age, the Supreme Court assumed, apparently, that he would get married latest by the age of about 28 years. In the case in hand, the deceased was found to be 14-15 years of age. Taking the lower age, and on the basis of the decision in Laxman Iyer, the multiplier in the case of the deceased cannot be expected to exceed 14. It has been held by the august Supreme Court in United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors. that in an appropriate case, a lower multiplier than what is prescribed by the Second Schedule to the Act can be applied. Consequently, applying a multiplier of 14, the Appellants would be entitled to compensation of Rs. 1,42,400/- (850 x 12 x 14). Taking the requirement of the deceased of 1/3rd for personal expenses, the dependency of the Appellants would come to Rs. 95,200/- which I would determine as the amount of compensation due to the Appellants.

16. In addition to the above, the Appellants would be entitled to funeral expenses which I would quantify at Rs. 1,000/- and loss of love and affection which I would quantify at Rs. 3,000/-. The total compensation due to the Appellants would work out to be Rs. 1,00,000/- (rounded off). The Appellants will be entitled to interest @ 9% per annum on the amount awarded over and above what has been awarded by the learned MACT from the date of the Award, that is, 14th June, 1988.

17. For   the   aforesaid reasons,    the  appeal  is allowed to the extent indicated.  There will be no order as to costs.