Madras High Court

The Branch Manager vs P.Daisy on 27 January, 2021

                                                                              C.M.A.No.1175 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 27.01.2021

                                                         CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.M.A.No.1175 of 2020
                                              and C.M.P.No.7357 of 2020
                   The Branch Manager
                   The National Insurance Co. Ltd.
                   No.751, 3rd floor, Anna salai
                   Chennai-2.                                                     ... Appellant

                                                          Vs.
                   1.P.Daisy

                   2.Selvin Baskar @ Baskar

                   3.N.Vinayagam                                                  ... Respondents
                   (3rd respondent remained exparte before the
                   Tribunal and hence notice to 3rd respondent
                   is dispensed with)

                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the judgment and decree dated 29.01.2019 made

                   in M.C.O.P.No.7511 of 2014 on the file of Motor Accident Claims Tribunal,

                   IV Small Causes Court, Chennai.

                                         For Appellant          : Mr.J.Chandran



                   1/30


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                                                                                C.M.A.No.1175 of 2020

                                            For R1 and R2     : Mr.K.Suryanarayanan

                                                     JUDGMENT

This matter is heard through “Video-Conferencing”.

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company challenging the award dated 29.01.2019 made

in M.C.O.P.No.7511 of 2014 on the file of Motor Accident Claims Tribunal,

IV Small Causes Court, Chennai.

2.The appellant/Insurance Company is the 2nd respondent in

M.C.O.P.No.7511 of 2014 on the file of Motor Accident Claims Tribunal, IV

Small Causes Court, Chennai. The respondents 1 and 2 filed the said claim

petition claiming a sum of Rs.20,00,000/- as compensation for the death of

their daughter viz., B.Jemima Blessy, who died in the accident that took place

on 19.08.2014.

3.According to the respondents 1 and 2, on the date of accident i.e., on

19.08.2014 at about 4.15 hours, while the deceased Jemima Blessy was riding

her motorcycle from North to South direction near Water Pumping Station,

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200 feet road, Kolathur, Chennai, the driver of the water tanker lorry

belonging to the 3rd respondent, who was proceeding in the same direction,

drove the same in a rash and negligent manner, hit behind the deceased

motorcycle and due to the said impact, the deceased was thrown out and thus,

the accident has occurred. In the accident, the said Jemima Blessy sustained

fatal injuries and died on the spot. Therefore, the respondents 1 and 2 have

filed the above claim petition claiming compensation as against the 3rd

respondent, owner of the water tanker lorry and the appellant/Insurance

Company.

4.The 3rd respondent, owner of the water tanker lorry, remained exparte

before the Tribunal.

5.The appellant/Insurance Company insurer of the water tanker lorry

filed counter statement denying the averments made by the respondents 1 and

2 and stated that the accident has occurred only due to negligence of the

deceased minor. The deceased minor was the tort-feasor and the minor was

not authorised to drive any vehicle. Therefore, the appellant/Insurance

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Company is not liable to pay any compensation to the respondents 1 and 2. In

any event, the compensation claimed by the respondents 1 and 2 is excessive

and prayed for dismissal of the claim petition.

6.Before the Tribunal, the 1st respondent, mother of the deceased

examined herself as P.W.1, one Muthuvel, eye-witness to the accident was

examined as P.W.2 and 10 documents were marked as Exs.P1 to P10. The

appellant/Insurance Company did not let in any oral and documentary

evidence.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the driver of the water tanker lorry belonging to the 3rd respondent and

directed the appellant/Insurance Company being insurer of the said water

tanker lorry to pay a sum of Rs.17,42,000/- as compensation to the

respondents 1 and 2.

8.Against the said award dated 29.01.2019 made in M.C.O.P.No.7511

of 2014, the appellant/Insurance Company has come out with the present

appeal.

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9.The learned counsel appearing for the appellant/Insurance Company

contended that the respondents 1 and 2, who are parents of the deceased

knowing fully well that the minor girl was not qualified to hold driving

license, allowed her to ride the motorcycle and invited the accident. At the

time of accident, the deceased minor did not have any experience to ride the

motorcycle and without wearing helmet, rode the motorcycle and invited the

accident. The Tribunal ought to have fixed entire negligence on the part of the

deceased. In any event, the Tribunal ought to have fixed contributory

negligence on the part of the deceased. The respondents 1 and 2 are liable for

punishment both under IPC and Motor Vehicles Act and they are not entitled

to any compensation. The learned counsel further contended that the deceased

was aged 15 years, she was studying X standard and was a non-earning

member at the time of accident. The Tribunal erroneously fixed a sum of

Rs.10,000/- per month as notional income of the deceased, granted 40%

enhancement towards future prospects and granted a sum of Rs.2,00,000/- for

loss of love and affection, which are contrary to the judgment of the Hon'ble

Apex Court. The total compensation of Rs.17,42,000/- awarded by the

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Tribunal is un-sustainable one and prayed for setting aside the award of the

Tribunal.

10.Per contra, the learned counsel appearing for the respondents 1 and

2 contended that while the deceased was riding motorcycle from North to

South direction, the driver of the water tanker lorry belonging to the 3rd

respondent proceeded the lorry in a same direction in a rash and negligent

manner, dashed on the motorcycle and caused the accident. The accident has

occurred only due to negligence of the driver of the tanker lorry belonging to

the 3rd respondent. F.I.R. was registered only against the driver of the tanker

lorry. The Tribunal considering the materials, fixed negligence on the driver

of the tanker lorry and there is no error. The learned counsel for the

respondents 1 and 2 further contended that the deceased was a bright student

and has great future, the respondents 1 and 2 lost their daughter in her young

age and therefore, the monthly income fixed by the Tribunal is not excessive.

The Tribunal considering the facts and circumstances, fixed monthly income,

granted future prospects, deducted 50% towards personal expenses and

awarded compensation for loss of dependency and other conventional heads.

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The total compensation awarded by the Tribunal is not excessive and prayed

for dismissal of the appeal. In support of his contentions, the learned counsel

relied on the following judgments:

(i) (2009) 13 SCC 422 (Reshma Kumari and others vs. Madan

Mohan and another);

“41.Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.

.. ..

46.In the Indian context several other factors should be taken into consideration including education of the dependents and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are

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being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Company Ltd. v. Jashuben and others,(2008) 4 SCC 162 held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.”

(ii) 2014 (2) TNMAC 6 (SC) (V.Mekala vs. M.Mathi and another);

“18. Further, it has been held in the case of Reshma Kumari (supra) that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. The relevant paragraph read as under:

“27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down

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rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.”

19. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this Court, and keeping in mind her past results we take Rs.10,000/- as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in catena of cases referred to supra. Therefore, the appellant is justified in seeking for re-enhancement under this head as well and we hold that the claimant- appellant is entitled to 50% increase under this head as per the principle laid down by this Court in the case of Santosh Devi (supra). .. .. .. .. ”

11.Heard the learned counsel appearing for the appellant/Insurance

Company as well as the learned counsel appearing for the respondents 1 and

2 and perused the entire materials on record.

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12.It is the case of the respondents 1 and 2 that while the deceased

Jemima Blessy was riding her motorcycle from North to South direction near

Water Pumping Station, 200 feet road, Kolathur, Chennai, the driver of the

water tanker lorry bearing Registration No.TN-23-BA-4055 belonging to the

3rd respondent, who was proceeding in the same direction, drove the same in a

rash and negligent manner, hit behind the deceased motorcycle and due to the

said impact, the said Jemima Blessy was thrown out, sustained injuries, died

on the spot and thus, the accident has occurred. To substantiate the same, the

respondents 1 and 2 examined eye-witness as P.W.2 and marked the F.I.R.,

which was registered against the driver of the lorry as Ex.P1. On the other

hand, it is the case of the appellant/Insurance Company that the accident has

occurred only due to negligence on the part of the deceased. The appellant

did not examine the driver of the lorry or any witness in support of their case

and to disprove the evidence of P.W.2. The Tribunal considering the evidence

of P.W.2, F.I.R. and in the absence of contra evidence to the evidence of

P.W.2, held that the accident occurred only due to rash and negligent driving

by the driver of the lorry belonging to the 3rd respondent.

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13.It is an admitted fact that the deceased was a minor girl aged only

15 years and was not qualified to hold driving license at the time of accident.

She rode the motorcycle without possessing driving license and without

wearing helmet. The respondents 1 and 2 knowing fully well of the fact

permitted their minor daughter to ride the motorcycle without having driving

license. By doing so, the respondents 1 and 2 have not only endangered the

life of their minor daughter but also the other road users including

pedestrians. This attitude of the parents must be deprecated. Due to their

action of allowing their minor child to ride the motorcycle, some contributory

negligence has to be fixed on the deceased. Considering the above materials,

25% contributory negligence is fixed on the part of the deceased and the

respondents 1 and 2 are entitled to only 75% of the compensation awarded.

14.As far as quantum of compensation is concerned, the deceased

minor girl was aged 15 years, she was school going child and was studying X

standard at the time of accident. The pecuniary loss for the death of minor

cannot be quantified by mathematical calculation. The minor on completing

her studies may get good job and reasonable income. At the same time, it has

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to be taken into account that life is full of uncertainties. Considering this fact

along with mental agony and loss of happiness to the parents by death of their

minor child, the Courts must grant just compensation. The compensation

awarded should not be pittance or wind fall. The compensation for the death

of the minor is to be granted as per the structural formula in the II Schedule.

As per the structural formula, the annual income of the minor non-earning

member upto 15 years is fixed at Rs.15,000/-. The Hon'ble Apex Court taking

into consideration the date of insertion of the II Schedule in the Motor

Vehicles Act, passage of time and raise in cost of living, has increased annual

income of the minor non-earning member.

15.The issue of granting compensation for the death of minor

non-earning member was considered by the Hon'ble Apex Court in the

following judgments:

(i) In the judgment reported in 2001 (8) SCC 197 (Lata Wadhwa and

others vs. State of Bihar and others) the Hon'ble Apex Court has fixed

annual contribution of minor aged 10 to 15 years at Rs.24,000/- and applied

multiplier '15'. In paragraph-11 of the said judgment, it is held as follows:

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“11.So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50,000/- has been held to be payable by way of compensation, to which the conventional figure of Rs.25,000/- has been added and as such to the heirs of the 14 children, a consolidated sum of Rs.75,000/- each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children, who died on the fateful day and having found their contribution to the family at Rs.12,000/- per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs.25,000/- has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000/- each. 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 parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation

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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 Ry. Vs. Jenkins [1913] A.C.1, and Lord Atkinson said thus:

“........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.”

At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There

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are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at just compensation in such cases and, therefore, he has determined the same on an approximation. Mr.Nariman, appearing for the TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his views also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of the Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10

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years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000/- should be added and thus the total amount in each case would be Rs. 2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. The TISCO itself has a tradition that every employee can get one of his child employed in the company. Having regard to these facts, in their case, the contribution of Rs.12,000/- per annum appear to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000/- and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakhs, to which an additional sum of Rs.50,000/- has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children.”

(ii) The Hon'ble Apex Court in the judgment reported in 2006 (13)

SCC 60 (New India Assurance Co. Ltd. vs. Satendar and others), awarded

a lumpsum of Rs.1,80,000/- for the child aged 9 years and in paragraph-12, it

is held as follows:

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“12.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.”

(iii) In the judgment reported in 2014 (1) SCC 244 (Kishan Gopal

and another vs. Lala and others), the Hon'ble Apex Court has fixed annual

income for the deceased boy aged 10 years at Rs.30,000/- and applied

multiplier '15'. In paragraph Nos.34 to 40, it is held as follows:

“34.Since we have set aside the findings and reasons recorded by both the Tribunal and the High Court on the contentious issue Nos.1 & 2 by recording our reasons in

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the preceding paragraphs of this judgment and we have answered the point in favour of the appellants and also examined the claim of the appellants to award just and reasonable compensation in favour of the appellants as they have lost their affectionate 10 year old son. For this purpose, it would be necessary for us to refer to Second Schedule under Section 163-A of the M.V. Act, at clause No.6 which refers to notional income for compensation to those persons who had no income prior to accident.

35.The relevant portion of clause No.6 states as under:

“6. Notional income for compensation to those who had no income prior to accident:

..............

(a) Non-earning persons – Rs.15,000/- p.a.”

The aforesaid clause of the Second Schedule to Section 163-A of the M.V. Act, is considered by this Court in the case of Lata Wadhwa & Ors, v. State of Bihar (2001) 8 SCC 197 while examining the tortuous liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation

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shall be awarded taking the contribution of the children to the family at Rs.12,000/- p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs.25,000/- was awarded. Thus, a total sum of Rs.1,57,000/- was awarded in that case.

36.After noting the submission made on behalf of TISCO in Lata Wadhwa case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of Rs.50,000/- should be added and thus total amount in each case would be Rs.2 lakhs.

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37.Further, in Lata Wadhwa case it was observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs.12,000/- p.a. appears to be on the lower side and held that the contribution of such children should be Rs.24,000/- p.a.

38.In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non- earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard.

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39.In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176, which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.

40.The said amount will carry interest at the rate of 9% p.a. by applying the law laid down in the case of Municipal Council of Delhi v. Uphaar Tragedy Victims Association (2011) 14 SCC 481, for the reason that the Insurance Company has been contesting the claim of the

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appellants from 1992-2013 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is legally justified.”

(iv) The Hon'ble Apex Court in the recent judgment reported in 2020

(7) SCC 256 (Rajendra Singh and others vs. National Insurance

Company Ltd. and others) set aside 50% contributory negligence fixed on

the minor on the facts and circumstances of that case, confirmed award of the

Tribunal fixing annual income at Rs.36,000/-, deducting 50% and applying

multiplier '15'. In addition to that a sum of Rs.25,000/- was granted towards

funeral expenses. In paragraph Nos.2 to 5 and 16, it is held as follows:

“2.The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father

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of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religious congregation. The horse cart was hit by a bus resulting in their death.

3.The Tribunal assessed the notional income of the first deceased at Rs.36,000/- per annum and after ¼ th deduction towards personal expenses, with a multiplier of 17 awarded a compensation of Rs.4,59,000/?. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs.1,00,000/? was then added as loss of consortium and Rs.25,000/? towards funeral expenses leading to an award total of Rs.3,54,500/? with interest at the rate of 7.5%.

4. Insofar as the minor child is concerned, the notional income was assessed at Rs.36,000/? per annum, applying a 50% deduction towards personal expenses with a multiplier of 15, the compensation was awarded at Rs.2,70,000/? out of which 50% was again deducted towards contributory negligence. A sum of Rs.25,000/? was added towards funeral expenses, leading to an award total of Rs.1,60,000/? with interest at the rate of 7.5%.

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5. The appeal for enhancement of compensation was dismissed by the High Court and thus the present appeals.

.. ..

16. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs.2,95,000/? by granting any further compensation under the separate head of future prospects. It may only be noticed that R.K. Malik vs. Kiran Pal (2009) 14 SCC 1 does not consider Satender (2006) 13 SCC 60 on the grant of future prospects as far as children are concerned.”

16.In the present case, the deceased was minor girl aged 15 years,

school going child and non-earning member. The Tribunal fixed a sum of

Rs.10,000/- as monthly income of the deceased, granted 40% enhancement

towards future prospects, deducted 50% towards personal expenses, applied

multiplier '18' and awarded a sum of Rs.15,12,000/- towards loss of

dependency. The annual income fixed by the Tribunal is excessive and the

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multiplier '18' adopted by the Tribunal is not correct. The minor is a

non-earning member and is depending on the parents for her personal

expenses. In view of the same, no deduction can be made for personal

expenses. In the judgment reported in 2020 (7) SCC 256 (Rajendra Singh

and others vs. National Insurance Company Ltd. and others) cited supra,

the Hon'ble Apex Court confirmed the award of the Tribunal fixing notional

income of the minor at Rs.36,000/- per annum and deducting 50% towards

personal expenses considering the facts and circumstances of that case. In

paragraph-16 of the above said judgment, the Hon'ble apex Court has held

that determination of just and proper compensation with regard to

compensation for the death of a child, the entire facts and circumstances of

the case must be considered and in the facts and circumstances of the said

case, did not enhance the annual income fixed by the Tribunal with 50%

deduction.

17.In the judgments relied on by the Hon'ble Apex Court considering

the fact that the deceased was a brilliant student and first in Class X, fixed a

sum of Rs.10,000/- per month and granted 50% enhancement towards future

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prospects. In the present case, the respondents 1 and 2 except filing the mark

sheet of the deceased, failed to prove that the deceased was a brilliant

student. The Tribunal without properly appreciating the materials placed

before it, fixed excessive amount of Rs.10,000/- as monthly income of the

deceased and granted 40% enhancement towards future prospects. In the

judgment of the Hon'ble Apex Court reported in (2009) 13 SCC 422

(Reshma Kumari and others vs. Madan Mohan and another) cited supra,

in para-27 it is held as follows:

“27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested

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that some sort of hypotheses or guess work may be inevitable. That may be so.”

18.It is well settled that just and proper compensation must be awarded.

The compensation should not be windfall, but at the same time it should not

be pittance. The Hon'ble Apex Court has held that the compensation

especially to minor child, non-earning member must be fixed depending on

the facts and circumstances of the case. In the facts and circumstances of the

present case, this Court is of the considered view that the notional income

fixed by the Tribunal is excessive and the judgments relied on by the learned

counsel appearing for the respondents 1 and 2 do not advance his case.

19.In the judgment reported in 2014 (1) SCC 244 (Kishan Gopal and

another vs. Lala and others), the Hon'ble Apex Court has fixed annual

income of the minor at Rs.30,000/-. Considering the above judgments of the

Hon'ble Apex Court and the facts and circumstances of the present case, the

notional income of the minor fixed by the Tribunal is excessive. The same is

reduced to Rs.30,000/- per annum as fixed by the Hon'ble Apex Court in

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1175 of 2020

2014 (1) SCC 244 (Kishan Gopal and another vs. Lala and others) cited

supra and without any deduction, applying multiplier '15', a sum of

Rs.4,50,000/- (Rs.30,000/- X 15) is awarded towards loss of dependency. A

sum of Rs.2,00,000/- awarded by the Tribunal towards loss of love and

affection is excessive and hence, the same is hereby reduced to Rs.80,000/-.

The amounts awarded by the Tribunal towards funeral expenses and loss of

estate are just and reasonable and hence, the same are hereby confirmed.

Thus the compensation awarded by the Tribunal is modified as follows:

                    S.No           Description     Amount         Amount           Award
                                                  awarded by    awarded by      confirmed or
                                                   Tribunal      this Court     enhanced or
                                                     (Rs)           (Rs)         granted or
                                                                                  reduced
                   1.          Loss of              15,12,000       4,50,000 Reduced
                               dependency
                   2.          Loss of love and      2,00,000         80,000 Reduced
                               affection
                   3.          Loss of estate          15,000         15,000 Confirmed
                   4.          Funeral                 15,000         15,000 Confirmed
                               expenses
                               Total                17,42,000       5,60,000


                               75% of the                                    Reduced by
                               award amount                         4,20,000 Rs.13,22,000/-





https://www.mhc.tn.gov.in/judis/
                                                                             C.M.A.No.1175 of 2020

20.With the above modification, the Civil Miscellaneous Appeal is

partly allowed. The compensation of Rs.17,42,000/- awarded by the Tribunal

is hereby reduced to Rs.5,60,000/- together with interest at the rate of 7.5%

per annum from the date of petition till the date of deposit. The

appellant/Insurance Company is directed to deposit a sum of Rs.4,20,000/-

being 75% of the award amount now determined by this Court along with

interest and costs, less the amount already deposited if any, within a period of

six weeks from the date of receipt of a copy of this judgment. On such

deposit, the respondents 1 and 2 are permitted to withdraw their respective

share of the award amount now determined by this Court, along with

proportionate interest and costs, after adjusting the amount if any, already

withdrawn. The appellant/Insurance Company is permitted to withdraw the