Jharkhand High Court

Smt. Savita Devi vs Bablu Prasad Yadav on 26 February, 2021

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Miscellaneous Appellate Jurisdiction)
                            M.A. No. 88 of 2013
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1. Smt. Savita Devi

2.Umesh Saw ...... Appellants Versus

1. Bablu Prasad Yadav

2. Ranjeet Prasad Yadav

3. Bijay Kumar Singh

4.National Insurance Company Limited, Giridih ......Respondents

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      CORAM:         HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through :-Video Conferencing)
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      For the Appellants                  : Mr. Arvind Kr. Lall, Advocate
      For the Respondent no.4             : Mr. Manish Kumar, Advocate
                                  ......
15/Dated: 26/02/2021.
         1.     Heard, learned counsel for the parties.

2. The appeal has been preferred by the Claimants for the enhancement of the award dated 21.02.2013 passed by District Judge -cum-Presiding Officer Motor Vehicle Accident Claim Tribunal, Giridih in M.V Claim Case No.-16/2010, whereby the insurance company has been directed to pay the compensation amount of Rs 1 lac with interest @ 9% per annum from the date of filing of the claim case till its realization to the claimants through cheque or bank draft within a period of 2 months from the date of receipt of copy of the award, for the death of deceased namely Anju Kumari, aged 6 years and Rs 2000/- has also been paid towards the funeral expenses. Claimants namely, 1. Smt. Savita Devi and 2.Umesh Saw are the appellants before this Court, who lost their minor child, Anju Kumari aged about 6 years in an unfortunate accident which took place on 11.10.2007 when the deceased had gone Gumgi with ger mausi to see her buwa (Paternal Aunt- father's sister) in the bus going towards Tisri. The alleged vehicle Himanshu Bus bearing registration No. WB-19A-4378 was coming towards Giridih and going towards Gawan, dashed the deceased Anju Kumari who was standing by the side. Her buwa (Paternal Aunt- father's sister) was stepping up in the bus, causing grievous injuries to the minor Anju Kumari and her both legs were crushed and damaged. Anju Kumari was immediately brought to Tisri Hospital where after first-aid she was referred to Sadar Hospital, Giridh, but died in the way of hospital.

3. Learned counsel for the appellants has assailed the impugned award on the grounds that the learned Tribunal has paid meager amount to the claimants. The tribunal has not considered the notional income and the multiplier for the computation of the compensation, though the deceased was aged 6 years. The tribunal has awarded a meager amount i.e. Rs 2000/- towards funeral expenses and no amount has been awarded for the loss of estate and under love and affection and

no future prospect has been given, though the Apex Court in the case of Kirti & Anr. Etc. vs. Oriental Insurance Company Ltd reported in (2021) 2 SCC 166, has granted future prospect to the non-earning persons over the notional income, as such, this Court may enhance the compensation.

4. Learned counsel for the appellants has relied upon the judgment passed by this Court in the case of Mina Devi vs. Arbinda Das and ors. dated 06.12.2019 passed in MA. No.461 of 2019 and Santosh Yadav and Anr. vs. Baldeo Sao and Ors. on 16.12.2019 passed in M.A. No.48 of 2017 and has submitted that this Court has granted compensation in such cases where the deceased was minor aged about 6 years and 10 years respectively to the tune of Rs.3,75,000/- along with interest @ 7.5% from the date of institution of the claim application, as such, this Court may consider the same.

5. Learned counsel for the respondent no.2, Mr. Manish Kumar has submitted that this Court has passed an order relying upon the judgment passed by the Delhi High Court in the case of Chetan Malhotra Vs. Lala Ram (2016) SCC Online Del 2981 as well as the Apex Court in the case of Kishan Gopal & Anr. vs. Lala & Ors., reported in 2014 (1) SCC 244, State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484,New India Assurance Co. Ltd. vs. Satender and others (2006) 13 SCC 60 and National Insurance Company Ltd. Vs. Farzana (2009) ACJ 2763 and granted compensation to the tune of Rs.3,75,000/- along with interest @ 7.5% from the date of institution till the date of indemnifying the award, but in the present case since the occurrence is of the year, 2007, which was adjudicated in the year 2013, considering it to be just and fair compensation, this Court may not interfere by enhancing the amount as the compensation granted to the claimants for death of their minor daughter aged about 6 years is fair and just compensation, as such, this Court may dismiss the appeal.

6. After hearing, learned counsel for the parties and looking into the facts and circumstances of the case, it appears that Motor Vehicle Act, 1988 has not taken notice of such eventuality when the deceased will be less than 15 years. There is no straitjacket formula appended with the Motor Vehicle Act and this Court has considered the case of Chetan Malhotra (supra) and has taken note of the cost inflation index in paras 65, 66, 67, 68, 69, 70 and 71 which are profitably quoted hereunder:

"65. Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each financial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if followed, would ensure that there is no inconsistency in the awards of compensation in cases of death of children. [R.K.

Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC 384]. Since the

amount which requires to be subjected to correction was determined by decision in R.K. Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".

66. For ready reference, the rates of Cost Inflation Index (CII) notified by the government till date, to the extent necessary, are reproduced in the table given below:

               Financial                     CII
               Year

               1/4/1981


               xxx                           xxx

















               2014-15                       1024
               2015-16                       1081
                               CONCLUSIONS

67. In the considered view of this Court, the cases for compensation on account of death of children in motor vehicular accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss to estate), in accordance with the age-group wise categories as in R.K. Malik (supra); the first category being of children less than 10 years' in age, the second category being of children more than 10 years' and up to 15 years' in age, and the third category 3 of children more than 15 years' but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully employed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of nonearning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15

years' to 20 years' old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.

68. Since in the claims arising out of death of children, generally speaking, (nonearning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one-half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the second schedule is very low as compared to the rates of minimum wages. Therefore, the deduction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be appropriate.

69. The award of compensation must necessarily take into account nonpecuniary damages. In R.K. Malik (supra), Rs. 75,000/- awarded by this Court as the "conventional compensation" was enhanced by the Supreme Court by further similar amount (Rs. 75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non-pecuniary damages of Rs. 1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of Rs. 75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of pecuniary damages". Since the court had also upheld the award of similar sum (Rs. 75,000/-) by this court as "conventional compensation", both amounts of nonpecuniary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non- pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of 'just compensation'.

70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not next) thousands of rupees.

71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows:

(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of nonearning persons (Rs.15000/- p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation-corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.

(ii) For inflation-correction, the financial year of 1997-1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner:-

Rs. 15,000/- × A ÷331 [wherein the figure of 'Rs. 15,000/-' represents the notional income specified in the second schedule requiring inflation-correction; 'A' represents the CII for the financial year in which the cause of action arose (i.e. the accident/death occurred); and the figure of '331' represents the CII for the 'base year']

(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation-corrected amount), it shall be rounded off to a figure in next thousands of rupees.

(iv). The amount of notional income thus calculated shall be reduced to twothird, the deduction to the extent of one-third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand")

(v) For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10)

(vi) For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).

(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).

(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.

(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child."

7. Under the aforesaid circumstances, considering the cost inflation index for the year 2007-2008 which is 551 as the incident occurred on dated 11.10.2007, divided by the cost inflation index of base year i.e. 1997-1998 as 331 and the said chart of the cost inflation index notified by the Government up to the year, 2015- 2016 is 1081 and for the year, 2016-2017 is 1125. Unfortunate accident took place on 11.10.2007 and considering the notional income of the deceased to be Rs.15,000/-, the calculation is will be as Rs.15,000 x A ÷ by 331 i.e. 15,000 x 632 of cost inflation index divided by 331, then Gross income comes to Rs.24,969.78/- which is rounded off as Rs.25,000/-.

8. After deducting 2/3rd of Rs.25,000/- and applying the multiplier of 10, the pecuniary loss to estate is computed as (Rs.25,000 x 2/3 x 10 = Rs.1,66,666/-). Adding a similar account towards composite non-pecuniary damages, the total compensation is Rs.3,33,000/-, though the same is considered to Rs.3,75,000/- in view of the judgment passed in the case of National Insurance Company Ltd. Vs. Farzana 2009 ACJ 2763. In any cause of action arising on or after dated 10.05.2000, the amount of compensation shall not in any case be less than Rs.3,75,000/- as it has been awarded in the case of Farzana (Supra).

9. Further, in the case of Sayed Mehaboob vs. The New India Insurance Co. Ltd. reported in 2011 (11) SCC 625, Hon'ble Apex Court has held at para 13 that the Motor Vehicle Act, 1988 is a beneficial legislation intended to interpreted liberally so as to achieve the maximum benefit to the claimants, which is profitable quoted herein: -

13. The Motor Vehicles Act of 1988 is a beneficent legislation intended to place the claimant in the same position that he was before the accident and to compensate him for his loss. Thus, it should be interpreted liberally so as to achieve the maximum benefit.

10. Since there is no Schedule, as such, considering the compensation as considered in the case of deceased having age of 6 years under different categories cannot be equated in the present case, individually for deduction as personal and living expenses in view of the judgment passed by the Apex Court in the case of Sarla Verma (Smt) & others vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 and with regard to future prospect in view of the judgment passed by the Apex Court in the case of Kirti (Supra) and in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680.

11. Under the aforesaid circumstances, this Court is of the view that the compensation cannot be a windfall gain or a bonanza, but on the other hand, it should not be pittance, as such, in view of the above discussion, this Court directs the Insurance Company to pay a sum of Rs.3,75,000/- along with interest @ 7.5% from the date of institution of the case in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons vs. U.P. State Road Transport Corporation (2008 (4) JCR 79 (SC).

12. The amount already paid, if any, by the Insurance Company shall be deducted from the aforesaid amount and the balance amount of the same shall carry interest from the date of institution of the claim application.